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Q  U   I   ■■■   Y     J  U  H   I    S  P   R  U  IJ  E   N  C   F. .      jr... 


T5Y 


PROP.      rl,      E.         ![  U  T    C   r   I    IT    S    ,         LI.D. 


Reported  hy  G.G.McColloni, 


UHIVSRSITY      0?     I'    1   C   K  1   Q  A  II    . 


La\T  Class    of   1904. 


Edv/ards   i-3ros. Publishsrs. 


Aam  /.rLor,    Mich, 


1902—1903. 


\ 


V\bx 


I.  FRUITY       J  U  P   I    s  P  R  ';:  D  ^C  I:  C  ':.:.      JR.    I. 

u—  T    ^    "^    T    TJ   P    ""^  I     , 

f  --0-- 

o 

Before   entorinc  upon  the    subject    of    -'quity  Juris- 

pruconce,    it   r:ii^;ht   be   well   to   note   briefly   sonetliinr; 

touchiiif,,   upon  ttic   Bibliof^hraphy   of   the   subject,    as   c.n  aid 

to   the   understanding   of   the  boolcs   v;hich  v/e   ^^/ill   come    in 

cojat    ct    '.Varinj  this   course. 

eibliogiuiap:^. 

There  are  several  excellent  v;orks  upon  the  subject 
o'.'  hquity.  he  have  o,  very  ijood  v;ork  that  ".as  regarded  as 
sta:idard  and  is  still  considered  st;  ndard  as  a  literary 
v/ork  and  as  a  Classic.   That  v;ork  is  Story's  hquity  CTuris- 
prud--;nce,  written  ^ay   Judfe  Story,  as  you  all  know,  a  book 
v/hic]"'.  I  as  a  student  liked  very  much  to  read,  for  it  had 


nothin-,  in  it  th.at  repelled,  on  the  other  hand  it  had  every 
thing  thc't  attracts  th.c  student.   As  r    "oractical  book  it 
is  not  so  .^ood  as  some  books  that  h-ave  been  written  later, 
but  from  a  Literai-y  standpoint  .Vtory's  I!quity  Juris -"ru- 
dence  is  considered  the  stanc.ard.   Pomoroy's  ''ork  on 
I'luity  is  now  considered  the  stsuiaard  as  a  practical  book 
on  this  subject  in  this  country.  Tdis  r/ork  was  v/ritten 
by  "Professor  Poneroy  at  the  time  that  he  v/as  professor 
in  the  University  of  Galifor  :ia.  It  is  wrir.teri  in  three 
volumes  and  is  the  lAOst  exJiaustive  v;ork  that  Jias  ever 
been  wri.-,ten  on  this  subject. 

There  are  several  other  vrorks  that  may  be  read  to 
a  dvant  ac  e  by  Law  C  t  ud  e  nt  s : 

Eaton  on  ^'quity, 

Adam's  J'quity,    a  book  wri   ten  from  the  Pn^lish 
T,oint    of    view- 


k^ 


I.  T^    Q  U   I    T  Y      J  U  R   I    S  P  R  U  D  IC  IT   C  ^.      JR.  2. 

Bisr.hoon   or.     'quity,    a   good  book  for   students,    in 
on  -'•clunie. 

liEiWS on '  s   /'nierican  l^-dit  ion   of   r-,ne  11 '  s  •  I^quity 
Jurisprudence . 

?>iGelov;  on  j^quity,    a  cood  "book  lout   very  lorief. 

Seecli  on  ICodern  ]^quity   is   found    in  tlie    libraries 
of  the   profession  and   contains   r.    lar^e    oniount    of   cases 
and   it    is    soinetinos   very   '^asy  to    'jet    ^    line    on  a  niinlDer 
of   cases,    but    it    is   not    considered  cutliorative   by  tlis 

The    older  v-riters,    that    is    Story   and   those   v/ho 
wrote    ryn  t;^v3    subject    in  his   time,    considered   and  treated 
trie   subject    from  ,:  n  entirely  different    standpoint   froin 
that    taken  by  inodern  v-riters,    ;„iving   to   the   question   of 

jurisdiction  rauch  ;^:reater  Virominence   than   it   nox/  occupies. 
This    is    on   account    of   the   fact   that    codes   have   been  pass- 
ed  in  many  jurisdictions,    vrfiich  do  a-ciray,    to   a  r.:reat    ex- 
tent,   "ith  the    old  differences   betv/een  Goniinon   Law  and 
Equity  "'leadin^;;   .and  {2i^'in^.,  concurrent    jurisdiction   in 
1.1;.  ny  matters  v/here   previous  to  the   passai;;e    of   these    acts 
t'le  mcttters    of   jurisdiction  v/as    of  i^reat    importance. 

In   several   states  v;e   have    separate   Courts    of  ]^quity 
apart    sxi6.   distinct   from  the   Common  Law  Courts,    biit    the   ten- 
dency  is   to    do   avay  v/ith  the    separate   Equity  Tribunals    in 
the   different    States. 

'"e   have   also    separate  ilquity  Reports    in   some    States 
as    in  IIgv;  York,    Hew  Jersey  ^  nc    some    of  tlie    Southern 
States, 


A 


3.      EQUITY   J  U  R  I  S  P  R  U  ?••  J]  i:  C  T^.   JR.  3. 

It  is  essential  that  the  stui.  ent  in  order  to  know 
what  ""Equity  is,  must  know  something  of  what  T^^quity  has 
been,  and.  I  atn  sure,  the  student  should  have,  at  least,  a 
general  kaov/ledge  of  its  origin  a,nd  its  sources,  it  is 
not  ray  purpo:;-e  to  Qi-'ie   a  detailed  account  of  this  "but  a 
e;enr3ral  outline. 

In  order  to  ascertain  its  source  we  must  examine 
the  early  system  by  which  Justice  was  dispensed. 

FIRST,  AS  TO  TIIE  AIIGLO  SAXOU  PERIOD;  During 
the  An^lo  Saxon  Period  there  was  nothing  like  a  Court  of 
Equity. 

The  Policy  of  the  Anglo  Saxon  Period  was  one  of 
DECEIJTRALI Z  AT  I  ON . 

During  the   Saxon  Period  Jurtice  was  Administered 
very  largely  through  the  medium  of  LocelI  Courts,  known 
as  Eolk  Courts,  there  was  also  a  ilational  Assembly  known 
as  the  Assembly  of  the  "/ise,  they  had  a  Judicial  Eunction 
but  these  were  rarely  exercised.  The  policy  of  the   Anglo 
Saxon  Period  was  one  of  dece-ttTalization.  The  pur  ose  of 
the  System  was  to  Administer  Justice  at  the  DOOR  OE  THE 
SUBJECT.  But  in  this  system  v/e  find  nothing  like  a  court 
of  equity.   It  is  probable,  'lowever,  that  Equity  wts  ad- 
ministered during  that  period  to  a  grerter  or  less  extent 
through  the  mediuin  of  these  Local  Tribunals.  They  were  pre- 
sic'^ed  over  by  Non-  Profes-  ./..  1  Judges  anc-  as  Equity  is 
Simply  natural  Justice  it  is  probable  that  Equity  was  fre- 
quently administered  by  them. 


I.  'i^.    Q,  U   I    T  Y      J  U  R   I    3    ;?   R  U  i:  E   N   G   7..       JR.  4. 

<i7ico::T,  TJi:-:  period  o::;  uilliaii  th::  co'j.QifT.on;  '■ox: 

this  ivT.5   the   s'co.ti.i.s   i  virin:    the  An.vlo   Sfocon  Period,    the 
'njlo   Saxon  ^r^erioo.  v.t-.g   follo\7eri  "by  the  P-iriocl  of  '.'illi.m 
the   Cojiqueror. 

'■'illiam   in   setting  up  his    syster/i   of   Ju:-ispru-  ence 
did   not    interfere   with  tlie   /.n:;lo    ''.c;.xcn  Local   or  J'olk 
Covirts,    vhey  were    left    in   axis'cence,    l^.e    created  the   ^lin... 's 
CourL    or   the   Chief  Justioar,    v/hich  r.t   thic   time,    emhrr.ced 
the   judicial,    le:-;if. It'tive    anc.   executive   functions,    this 
was   the   creation   o..    the   71?J-:^   Ji:::;ICIAL  Of  -ICE  III  ^^ITGLISH 
JTrris-^T^UfC^ITCE. 

Another   importan"    act    of    ■  illiarn  v/as   the   creation   of 
the    office    of   Itinerant    Jurtices.    The   'uty   of  these    Just- 
ices v.'as    to   JO    from  County  to   County   ano.  hold.  Courts, 
Their   of i ice  however  v:as   teiii^iort.ry. 

The   Policy   of   '  illiam  the   Cono^ueror  rvt'.s    one    of 
CSl^TFf J.IZATIOK,    just    o;-posite   to   that    followed  by  the 
S.-xon3, 

"e   did  not      estroy   the    Sc:^cn  Courts,    hut   hy   openinc 
to   th.e  People   the   Judicial  Aut'"ority   of   the   Crovm.  he    in- 
augurated a  policy  that    .^radually   drev/  them  a\7ay  from 
these    local  courts. 

"h.ile    these    local    -axon  Courts    continued  to   exist 
through  several   &iicceering  Helens   t'.iey  :i:ra'.'ually  fell   into 
L.isuse,    the  ''Zin^Vs   Court    and    other   courts   takin^   their 
place, 

Ihj.rinj  the  Rei£:,n   of  T-Ienry  II   the   Juclicial  I'\inction5 
cf    Lfie   "rinc'B   Court   was   separate;:   frcr:i  the   Aaninistrati-re 
and  th.e   Lecisiative    functions   a,rid   frorii  that   time   vjitil 
its   aholishirient    it   T/as 


3.  J^   q  t;   I    7   Y        ■"'    7  i.   I    S  P   ;^   tj  r    j]  i:  c  Jl.      JR.    5. 

its   c'.toliohment    it   was  k;io\7n  ac   the   Court    of  tlis  itin^''^ 
r.ench, 

JXirin-^  tJiis   same  Feign  the   Office   of  Itinerant 
Justices   \/as  made   a  permanent    one,    later  the   Justices   of 
the    Superior  Courts  performed  the   functions    of  these    it- 
inerant  justices, 

oOo 


5.         "      u  I  T  Y      J  I.!  •;  I  s  ^  R  u  >:  r  :•  G  :^      jr.        5 

T,   •"    ?    ■"    ,.,    „    _  -J.J  ^ 

I'oxj  i".'.  these    e -rly   el-/;,    tho  Kinfi. 's   Court   v/  o   ■■tta.ch.ccl 
to   t]-'.G   person   of   thi    sovorei;>i.    It   v;   &   ■, /her over   the   nin--j 
happenec   to  l-c .   T>xis  beiii.':   inconvonion":   to   suitors   the 
o.ii'ficulty  v,-.'  g    re";edifcd  by   ?:■    "provision   in   the   'ai^na 
Ch- rta  to   the    e.'f.^ct   that    the   Corraon  ^-loi-.s   should  ^i.o    longer 
.fo.Llo";  tho   Cro\;n. 

In   ofcedj. 3ncG   to  this   .■    ner  Court   v/.-.s    creatcc   Izwown. 
as   the   Coninon  Tench  or-  Corrrnon  Pleis   ant     its    location  v.'as 
l'i:;ed   ct   V^-;Str,ir.i5ter .    It   had  jurisciction   in   cont roTorsios 
concern  in,;,-   Ir.nd   en<.     ether  i.i;  tters   that   v.3ie   "'^ure  ly   civil. 
This   Court   v.hich  h:d   its   oririn  iron  the  l'aj,,na   •'hartt. 
cjijy^^e    to  "bT    ^  Court    of   great    irripcrt  ;.nce    in  j^nLl  nd,      .■'..d 
its   jurisdiction  wrs   extended   to   '■    lar^e   nunocr    of   c.ses 
a.        it  Wi-. s        court    of   first    resort    i:i   all   cases  between 
subjects   vrlior?   t'v,    actior   v^.s   not    criminal   or   ^niasi-crini- 
i]ial    in   its   ::■  'ure,    v-hore    i.    public    rl^.ht    or  duty  -va;.-^    in- 
volved the    case   hvC    tc   be    tried   in  the  hin.-j's    Court, 

TIE?   TT'I^I;   Sb-P'TJOP.   L/.P'  COUPT   v/.-.s    called   tlie 
COURT   OP  P:'C:'n^  ir^P.      it    orl    in,- ted    curin.    the    rei:.n   of 
'illia:-   tb.e   Con/juoror.    'b   created  a  Poard   of  Ki-.h  Offici    Is 
'•/hose    c.uty   it   v;,-;s   to   super  intone    the   Royal  PiS  venue.    The 
Chief   Justicar   anc'    the   principc-.l  Parens  were    required  to 
attenc    si'ctin.s    of   this   boj-ro.   in   order  to   decide    questions 
cf   a   le  ^i.  1  nature,    these    of.icors   constituted  the    le::,al 
br- nch   of   the  Poard.    This   Judici.  1  Brr.nch  ([.r-xUclly   ._.i'err 
to  be    .    Court    knoYm  as   the  Court    of   the  ^bcchequer.   Py  the 
use    of   fictions   the   jurisdiction   of   f:'ds   court   v/as   extended 


II       -ni  Q  U  I  T  y   J  U  R  I  v'?  ?  R  U  D  "^  IvJ  G  1^.   JR.         6, 

\ 
until  it  came  tc  be  concurrent  v/itli  that  of  the  other  sup- 
erior courts, 

Nov/  I  have  briefly  sketched  axi   outline  of  the  origin 
of  these  Superior  Courts  in  Tilnglajid.   These  Courts  continued  to 
exist  until  the  Judicature  Act  of  1873,  by  that  act  txiey  were 
united  into  one  Superior  Court  of  judicature. 

ilow  this  was  the  macbine  for  administerin.^;  justice 
ir:  ■^n.^land  in  the  law  courts.   And  for  a  succession  of  centuries, 
side  by  side  with  these  superior  law  courts  we  find  tiiat  Courts 
■^f  Chancery  existed  in  England,  the  terms  Equity  and  Chancery 
bein-j;  synonyinous.   The  system  of  law  administered  in  tlds  court 
is  C8,lled  equity,  so  at  present  we  have  two  distinct  branches  of 
legal  procedure,  the  le;;^al  and  equitable. 

For  nearly  Six  Centuries  a  court  called  the  Court  of 
Ec^uity  or  Court  of  Chancery  has  existed  in  corxnection  with  these 
coninon  law  courts. 

To  an  ordinary  mind  this  dual  method  of  procedure 
seems  unnecessary.   It  is  difficult  for  an  ordinary  person  to  see 
why  if  he  wishes  to  get  damases  for  a  breach  of  contract  he  mugt 
go  before  one  tribunal  and  if  he  desires  the  specific  performance 
of  the  aaiae  contract  he  must  appeal  to  a  court  of  equity.   Tiie 
reason  for  this  dual  nature  will  appear  s.s  we  proceed  fe.rther 
wi  til  the  subject  of  the  origin  and  progress  of  equity.   There  ia 
uo   real  reason  why  we  should  have  this  dual  method  of  procedure 
at  the  present  time  and  in  many  states  it  has  been  done  av;ay  v.-ith, 
But  at  the  ticie  of  its  creation  in  England  tliere  were  powerful 
influences  at  work  which  seemed  to  make  a  separate  court  neces- 
sary. 


EQUITY      J  U  R   T    8  P   H  'J  D  73  17   G  ^. .    JH.  7. 

Of   course,    in  ririmitive    civilization,    the    legal 
procerisss   ?.rs    simple,    and  based  upon  natural   or   inherent   j^'.s- 
tice.      In    uhe    tiine    of   the  Roma.ns,    they  drew  their  lav;  from 
the    laws   of  nations,    ant'    the    lo.ws    of  nature;    aiid  upon 
their   ideas   of   right,    duty,    Justice,   morality   anc    j_,ood   char- 
acter,   they   built   a   code    of   le^al  principles,    v/hich   they 
av^plied   in  a.11   cases   that   came   tefore   thera,   modifying  the 
strict   rule   to    suit   the   particular   case,    in  each  instance. 
The    result    of  this  v.'as   a   simplicity  and   syirmetry   ol    pro- 
cedure  that   under  the   /inerican   or  JiJn^.lisri  system  of   proced- 
ure  cannot   he   attained.      It    seems    strange   that  England   sho   Id 
have    refused   to    r-.d opt    a   code    of   laws   which  ha,ve   formed  the 
ha,5is   of  the  lew  of  Oontinetal  Europe   anr    found   it   necess- 
ary to   fonn  a   separate    court   to  apply  the   etruitable   prin- 
ciples. 

After   the   establishment    of   the   common   law  courts    in 
"ngleaid  the    lav/  began  tc    form.ulate    itself    into   judicial  pre- 
cedents.   This   xrv.s   dene  by  the   Judges    statin;;:  the   principles 
upon  v/hich  he   acted.   The    law  at   this   time   consisted   chiefly 
of   customs   ;-nd  upon  the    introduction   of  Jucicial  precedents 
it   be^^an  to   assume   form  and  finally  becaane   the    ccmaion   law 
of  Englana.    There    is,    however,    a   great   jimount    of  Roman  Lav/ 
in   the   Gcmim^cn  Law  as    laid   down   in   those   times.    The    -Judges 
did  not   create    new  remedies.    The   early  judges  were    to  a 
great    extent   the  Ecclesiastics,    v;rho  naturally  drew  their 
learning  from  Rome.      Besides,    there    is  much  internal  evi- 
dence  that    our   comTion   lav/  in   its   e&,rly  stages  was   greatly 
influenced  'oy  Rojuan  Jurisprudence.   I-Iad   it   not  been   for  sev- 
eral great    causes  v»orking  against    it,    the   common  Lav/  of 
Englt..nd   would  have  been  formed  more   upon  the  Equitable 
R Oman  "p r inc  ip  le  , 

V/e  must    go   to   the   Roman' for  the  most    of   our  fun- 
damental  c.octriiies    of  equity, 

T;?''!   GREAT    SOURCE   OR  EQUITY   is   found    in   the 
ROl'IAH  lAlI,      Therefore   it    is   a   good   idea  for   a  student    to 
Icnovv   something    of   Roman  Jurisprudence. 

■^/e  v/iil  nov/  consider  the    causes  that    lead  to 
the   establishment    of   a   Separate    -ystem   of  Equity   in  Eng- 
land. 

In  the   early  days  the    coi;imon  law  judges   did     not 
ive   the    reasons  which  guided  them  in  giving   their   decisions, 
they    simply   found   for  the  plaintiff   or   defendant,    as   the 
case  might   be.   Rut    they   soon  began  to  v/rite    out   their  reas- 
ons  v/hicli  led  themx  to   give   their   decisions   as   they  did.   Ajid 
also  tffi   oive    their   opinions    on  m.atters    of   law  tha.t   arose 
and    these    opinions  v/ere   filed  with  the   case   o.nd   there   soon 
c-jne   to  be        large   collection.   Later   these   decisions  v/ere 
printed  a.nd  used   as  precedents. 

I   don't   v/a„nt   you  to   get    an  erroneous   iaea  in  re- 
gard  to  the   use    of  precedents.   There    is   a   vast    difference 
betv.een   the   use    of  precedents   to-day   end  their  use    in  the 
early  times,    for  they   cajrne   to  follow  precedent    so   closely 


II.  71    Q  U  I    T  Y      J  U  E  :   S  P   ■•    IT  D  3?  IT  C  E.      JIl.  3. 

that    a  decision  would  not   Toe   tiiren  luiless   an  exactly   similar 
precedent    could  be   found.    If  a  new  conLination   cf  facts 
came   up  v/ith   re^.ar-d  to   the   applicc^.ticn   of   some   principal 
of   equity  t>iey  would,  net    ar.ply   it.   Ant-    the   result  vAas   that 
the   people   demanc'ed  that   there    shoulc-  to    some   Court   where 
these   principals   cculd  he   applied. 

The   judges   of  the   present   time    are   not  "bound  to  the 
letter   of   the   precedent   as    in   the    early   df:'ys  "but   use   them 
as   a  ;-;uide,   not   hesitoting  to   decide   contrary  to   them  if 
the   neccessity   of   the    case    ci6m^•^'ds   that  they    should. 

TTT^   :?IRST   C/.U^ji],    leadin:;  to   the    establis^uaent    cf   the 

dutil   system  of   administering  justice    in  Ehl  land    is   due   to 

the    Slavish  Ad2nerenco    of   the   Oo;nr-:on  Law  Juci^es   to  Precec- 
-•■-1+ 

There    is   a,nother  "book  that    I    forgot   to  mention 
in  the  preceedinc   lecture,    t'nt^t    is   Spence    on     Iquita'ble 
Jtirisdiction, 

(Extract    read  from  Spence,    cited  he  low) 

Pomeroy's   "'quity  -Jurisprui.  ence ,    Par,    16. 
Spence 's  Equita"ble   Jxirisdiction,    ^lol, 
I,    pp.    321-2. 

You  are   not    to  xuaderstand  from  what    I   have    said,    tha.t 
v/ith  the   progress    of  the   English  jjeople   there  has  "been  no 
progress    in  the   Coinmon  La,w.    Later,    a  more   literal  spirit 
characterised  the   Judges,    heginning  with  Lord  Ilansfield.    So 
great   iias   been  tlie   change   tha.t   the   Common  Law  of   to-day,    as 
aciministered  "by   our  Courts  has   coiue   to  "be    an  admira'Dly 
constructed,   system., 

TI-Ti;   SECOiTD  CAUSE,    is   found   in   the   fact   that 
there    is   nothing   in  comm.on  hetv/een  the   dogina<,s    of   feudalism 
and  the   Principi-'S    of  the   Reman  Lav/,    Eeudalism  v.TiS   the 
basis    of   the    "nglish  Lav;  of  Real   Property  and  the  personal 
status   of   the   subject   was   governed  very  largely  by  feudalism, 
"'hile  -Equitable   principles  were    derived  from  Roman  Juris- 
prudence.   It   was   thought   by  Englis":.L  Jurist   that   the   two 
could  not   be    enforced  by   the    some   tribvma,!.   This   was  prob- 
ably an   erroneous   conclusion  for   on  the   European  Continet, 
whose   L?'ws   were    founded  upon  the   Roman   or   Civil  Law,    the 
two  were    enforced  by  the    stjne  tribunal. 

During   the    reign   of  Ed-ward   III.,    from  1327   to 
1377,    events   took  place   wlaich  was    one    of   the    causes   to  which 
I   refer.      At    this   time   the   Court    of  Equity  had  alreac.y  teen 
established  but    it   v/as    in   its    infancy.    In    _this   reign  an 
event    took  place   which  was   to   give   to   the   Jurisdiction   of 
the   Court    of  Equity  a  tremendous    impetus.      This   event   was 
the   refusal   cf  Edward  with  the    consent    rnd  sw^iport    of  his 
parliament   to  pay  the   tribute   demf.jnded  by  the   Pope   at   Rome, 
This   tribute   to   the  Pope  had  always  been  paid  by  Edv/ard's 
predecessors   from  ^Villi^jii  the   Conqueor   down,   V>rnatever  v/as 
conn-  cted  v/ith  the  Papacy  became   distasteful  to  the   people 


9,     EQUITY   J  L'  P.  I  S  r  P.  U  I;  E  H  0  E.  Jli.    9 


?  • 


and  the  Roman  Law  did  not  escape,  it  "being  regarded  cs  an 
instriunent  of  Papal  authority »  The  cito.tion  wd,s  prohibited 
in  the  Co'nmon  Law  Courts,  the  re  salt  of  this  was  to  extend 
the  Jurisdiction  of  the  coui't  of  equity,  which  previous  t>- 
that  tirje  had,  hseri  limited  rnd  of  little  account 

li-^  TliE  PECLTJAE  PROC^^DUR?  0?  Tffi"^  C0I.3I0N  LA.W 
COURTS,  we  find  another  reason  for  the  estahlislmient  of  a 
separate  x-^quity  Trihunal ,  It  \7as  necessary  oefore  'briagine; 
an  action,  to  ohtain  a  v/rit  issued  in  the  name  of  the  King, 
allov/in:  the  action  to  he  "brought.  The  Common  Law  Courts 
furnished  a  fixed  numher  of  these  v/i'its,  whose  form  was 
always  the  same.  Lew  ones  ccu2d  not  "be  added;  old  ones  could 
not  "be  ch-nged  to  meet  new  conditions.  There  were  act  only 
diffe'-ent  forms  of  actions  "bux  each  form  was  sub-divided 
with  reference  to  the  facts  v/hich  could  constitute  v.   , .round 
for  an  action.  If  a  person  could  find  a  writ  that  exactly 
suit  his  cast,  then  iie  could  have  relief,  otherv/ise  he  was 
withoTit   any  recourse  except  throutjh  the  intervention  of 
the  crown.   These  writs  v/ere  kept  in  an  office  or  depart- 
ment known  as  Ch;^ncery,   These  writs  were  dravm  up  "by  the 
Clerks  of  the  Chancery  Court  "but  the  judges  decided  whathe:' 
the  v/rits  were  proper  and  if  they  decided  th^t  the  v/rits 
were  not  proper  the  plaintiff  was  thrown  out  of  court.  You 
can  readily  see  from  what  I  have  said  that  the  system  of 
procedure  of  the  Common  Law  Courts  and  the  Remedies  furnished 
Y/ere  meagre  in  the  extreme.   There  were  a  certain  number 
of  forms  and  if  you  case  fitted  any  of  them,  v;ell  a,nd  good, 
and  if  it  did  not  you  were  without  remedy,  that  was  the 
situation, 

Bug  one  of  the  chiefs  defects  of  the  Common  Lc'W  system 
was,  that  it  furnished  no  scheme  for  the  adaption  of  relief 
for  the  chejiging  rights  and  duties  of  meno  A  CoriLaion  Lav/ 
Judgment  was  either  for  or  against  the  plaintiff,  it   might 
be  for  the  recovery  of  a  sum  of  money,  of  the  recovery  of 
the  possession  of  a  specific  chattel  or  the  recovery  of  the 
possession  of  certa^in  land,  it  could  go  no  farthero  A  Common 
Law  JudgiTient  is  simply  a  finding  in  favor  of  plaintiff   or 
for  the  defendant,  that  was  the  only  judg.nent  it  coula  enter. 
It  could  not   adapt  itself  to  the  changing  and  reciprocal 
duties  of  mankind.  It  ma.y  be  equitable  that  plaintiff  have 
r  judgment  if  he  does  what  is  equitable  to  defendant,  that 
th.::  court  should  enter  up  a  conditional  judgment  equitable 
and  just  according  to  the   situation  of  the  parties  but  th"' 
common  la  ■■  courts  had  no  authority  to  do  that,  but  equity   on 
the  other  hand  could  adapt  is  judgment  to  the  circumstances 
and  needs  of  the  parties o 

0 

Sept.  26th  1902. 


III.  EQUITY  JURISPRUDEITCE  JR.  8 

Lecture  III. 
In  my  last  lecture  I  was   explaining  some  of  the 
reasons  which  seemed  to  make  the  establi slime nt  of  a  separate 
Equity  Tri'bunal_a  necessity  in  England.  I  spoke  of  the  fact  that 
the  Conmon  Law  Judges  'became  slaves  to  legal  precedents  as  one 
of  the  reasons.  As  a  second  reason,  the  fact  that  the  rules  con- 
c-3rnin;3  the  lecal  status  of  the  person  and  the  ruleg  and  principles 
governing  real  property  were  antagonistic  and  v/ere  deemed  not 
to  te  enf orcea.hle  in  the  sajne  tribunal.  The  rules  concerning  real 
property  are  of  feudal  origin.  The   rules  and  doctrines  of  TCquity 
coming  from  the  Roman  Lav;  had  nothing  in  cofnmon  with  the  f eiu  al 
system.  Another  reason  I  gave  as  a  ca,use,  or  rather  c-.s  a  cause 
of  "broadenin;:  the  extent  of  the  Jurisdiction  of  the  Equity  Court 
which  had  already  been  established  in  England,  vras  the  refusal 
of  the  Crovm  with  the  support  of  Parliament  to  longer  pay  the 
tribute  Lemanc'ed  by  Rome.  As  the  Roman  La"/  \/as  the  source  of 
Equity  Jurisdiction  everyt'iing  that  pertained  to  it  became  un- 
popular. The  Roman  Law  did  not  escape.  The  Citation  in  Court  was 
prohibited  by  the  Co  non  Law  Judges.  So  the  situation  demanded 
tlie  establishment  of  another  court  where  the  principles  and  doct- 
rines of  equity  coulc  be  enforced.  The  fourth  reason  may  be  found 
in  the  peculiar  Procedure  of  the  Common  Law  Courts. It  was  necess- 
ary before  bringing  an  action,  to  obtain  a  writ  issued  out  of 
Chancery  in  the  name  of  the  King  allowing  the  action  to  be  brought. 
This  is  knovm  as  a  s\inraions  at  the  present  day,  and  is  for  tiie 
purpose  of  bringing  the  defenda,nt  into  court.   The  number  a.nd 
form  of  these  v;rits  were  fixed  and  certain.  jTot  only  the  form  of 
the  writ  was  fixed  but  the  state  of  facts  v/hich  made  up  the  act- 
ion v/hich  could  be  brought  under  the  different  forms  of  writs 
were  established,   o  the  diffe  ent  ways  by  v/hich  c;,  suitor  could 
get  into  court  was  limited,  on  the  Comiuon  lav;  side  and  if  an 
extraordinary  case  arose  and  the  plaintiff  v/as  unable  to  find 
a  form  of  writ  to  fit  his  case,  then  he  was  v/ithout  remedy,  ex- 
cept that  he  appealed  to  the  mercy  of  the  Crovm,  It  must  appear 
to  you  from  the  suggestions  that  I  have  made  that  the  system  of 
remedy  furnished  by  the  Common  Lr.w  Courts  were  inadequate  and 
uns-uited  to  the  needs  of  the  people, It  furnished  no  scheme  for 
the  adaption  of  relief  for  the  changing  rights  and  duties  of 
mankind.   A  Common  Law  Judgment  might  be  for  the  reco'-ery  of  the 
possession  of  certain  land,  for  the  recovery  of  a  specific  chattel, 
but  it  could  go  no  further.  It  could  not  nor  Cfin  it  to-day  enforce 
the  performance  of  a   duty.  The  Con-imon  Lav7  Judgment  could  reach 
property  but  it  could  not  make  litigants  do  what  in  Equity  end   good 
conscience  they  ought  to  do,  "uch  a  judgment  cannot  always  do 
Justice  betvv-een  the  parties.  There  may  be  duties  v/hich  one  of  the 
parties  should  before  to  the  other  before  he  is  entitled  to  relief 
sought.  He  may  be  entitled  to  relief  but  only  on  his  perfonmnce 
of  a  duty  towards  the  other  party.   In  brief  the  Coi-nmon  Law 
Court  did  not,  rinc  do  not  nov/  have  authority  to  enter  up  e.   con- 
ditional Judgment,  the  judgment  m.ust  be  absolute,  either  for  or 
against  the  plaintiff  or  defenc.ant.   IIov/  a  condition  or  a  provision 


III.  THOUITY  JTmiS^-'a^ElTCE.    JR.  9 

introduced.   in-,o  a  jv.C.[jient   con   only  come    in  t'.e   lorm  of  a  c.e- 
crss    in  I]quity,      The  '^quit&.'ble    t'ecrees   are    so   flexible    that 
they   can  be   acapte    to  meet    the   neccs,    anc'    the    changing   rL^^ihts 
ano    duties   of   liti^rnts. 

One    of  the   chief  defects    in  the    early  Common  Law 
Procedure    lay   in  the   fact   that    it  could  not   at'apt    itself 
to   tlie   chi..nt;ing  ri;yhts    of   litigants.    The   Cor.Tmon  Law  Judgmn- 
ent   I'^.ust  be   either   for  the   plaintiff   or  defencant.    It   must 
be   for  ;     su.-.  of  money   or  for   the  possession  or   ("elivery   of 
property.    It    cm  never  make   the   liti-^;vnt   do  v;hi-,t   it    is  his 
dutji-   to   do.    The  Coimuon  Lav/  Court  has   no  c-.uthority  to   enter 
a  conditional   Judgment    or  decree.      This   can   only  be   dona 
by  a    court   h^vin^  Equity  Pov/er. 

As   a   rule   the   Cor.mon  Laav  Court      roceeds   u/'^on  the 
theory  that   the   c'efeneant    is   not   ^oint^   to   do  his   duty   z.ni.   has 
not    done   it.    The      :  ecree    in  equity   on   the    other  hand  mahes    all 
the  T)arties   to   tn.c    cojitraversy   do  what    in  equity  aiad  o,ood   con- 
science   they   shoulc    do.   The   Corinon  Lav/  Judgi^'veiit    is   arbitrary  and 
fixed.      I    should   strte   that   the   Common  Lav/  method  of  procadure 
v/as   so  vmsuited  to   the   cements   of  litigants  that    in  the  P.einfsii 
of  T^dv/ard   I    a   statute  v/as  par.sed  v/hich  attempted  to    rem.ove   the 
c'.iff iculty.    This    statute  provided  that   the   Clerks   of   the   Court 
of  Chancery  ■:'i,:;ht   make   nev/  v/rits.    This   apparently  paved   the  v/r.y 
for   an   elastic   method   of  procedure,    biit    the   Common  Lav/  Judges 
v/ere   hostile    to   the    change,    anc    they   often  refused  to   recor^nize 
enc.  threv/  out    the   nev;  v/rits  dra\/n  up  by   the   Clerks    of  Chancery. 
This   St.:. tute    only   result. ^d   in   the   mcJcinf,    of   three   additional 
lefjal  remedies   or   forms    of  actions,    ni'inely,    trespass    on   the   case, 
ani    its   offshoots,    trover   an',    assumi'sit.    These   are   often  crlled 
the  Pquitable   Reije'-ies    of   the   Law   on   account   of   their  liberclity. 
It   wsE   through  these   actions   that   the   principles   of  equity  be,,an 
to   react   upon  the   CoLTmon  Lav/  Courts, 

The    situction  became   so   grave   thrt   an  attempted 
re;-"orra  v/as  made   through  an  act    of  Parlicunent   during  the  Roit;jn 
of  Edv/ard  the    I.   which  conferred   large  pov/ers  upon   the 
Chrnc ery   Clerks    in   re,,ard  -co    framing   of  nev/  v/rits.    The   Act 
however,    v/as   very   strictly   construed  by  the   Corrimon  I.av/ 
-Tudges,   who  v/ere   ct    once  hostile    to    it   and   it   f  £  iled  very 
largely   in  its   purpose.   Out    of   it,    however,    there    sprang 
thrp.e   nev/  causes    of   action  v/hich  ht.ve  been   of   great    in- 
flOience    in   liberalizing   the    lav,    naLiely,    trover,    Assujnpsit, 
and  Trespass    on  the   Case,    the    first   tv/o  being   offshoots    of 
the    last.   These   are   knov;n  as   the  Equitable   Actions    of   the 
lav;, 

Pomeroy's  "''Equity   Jurisprudence,   Vol.    I,    nar. 
24-:;9. 

I  have   now  given  you  an   outline    of   tlie    et.rly 
system  that    existed    in  England   for    tlie    enforcei-ient    of  juscice. 
I   have   explained   to   you  the   reasons   for   the    e-:tablisliraent    of  a 
separate  Equity  Tribunal.   T'e   are   now  prepared,    having   in  mind 
the   Comiiion  Law  System,    to   examine    into   the   Origin   of  Equity 


soverei{in 

is 

the 

source 

po\ 

-er,   however, 

he   could 

he 

Common 

1^=/ 

7  Tr 

ituiials , 

III.  EQUITY  Jir^ISPETrniT'TCE.   JR.  "fT^^ 

Jurisprudence.   Let  us  see  how  I'auity  arose. 

TID']  ^APLY  NORHl/.N  KINGS,  were  assisted  in  their  Judic- 
it  1  functions  "by  a  Council  known  as  the  ilinor  or  Select  Council. 
It  was  comj'O'sed  of  certain  hi£:,h  officials,  anc  f:uch  other  per- 
sons as  the  Kin,_  might  chose,  the   Chief  Treasucr,  the  Chief 
Justicar  \?ere  menh-rs  of  this  council.   This  Council  is  to  te 
distint;uished  from  the  Great  Council,  a  IthoUfjh  it  formed  pert 
of  it  v;hen  the  Great  Coimcil  was  in  session.  It  came  to  be  the 
custom  for  a  suitor  who  could  not  get  relief  from  the  Common 
Law  Court  to  throw  hinself  on  the  grace  or  mercy  of  the  Sover- 
eign sitting  in  Council.  In  theory  the 
of  all  justice  or  judicial  power.  This 
delegate.  He  delegated  parts  of  it  to  i 
In  theory  equitable  relief  ca^ne  from  the  judicial  power  still 
held  in  reserve  by  the  sovereign,  V-^ien  this  applici^tion  for  re- 
lief c;  ne  to  be  more  frequent,  it  was  the  custom  of  the  /Cing  to 
re.-'er  them  to  the  members  of  the  Select  Council,  The  most  fre- 
quent references  of  this  kind  were  r.v.Ce   to  the  Keeper  of  the 
Great  Seal  who  vas  called  the  Chc.ncellor,  He  v/as  the  Secretary 
to  the  "fing,  th^  nearest  to  him  in  all  matters  of  state  and  is 
sometimes  sa.id  to  be  the  Keeper  of  the  l.ing's  Conscience.  He  was 
usually  an  Ecclesiastic,  cvnt"  therefore  learned  in  the  Roman  law. 
This  delegation  of  authority,  at  first  occasionally,  came  after 
?  time  to  be  practica.  ly  constt-nt.   In  the  tv/enty  srcond  year 
of  the  reign  of  Edv;ard  III.  a  royal  writ  or  decree  v/as  irsued 
directed  to  the  Sheriffs  of  London,  directing  that  all  matters 
that  were  of  grace  should  be  prosecuted  before  the  Chancellor, 
The  beginning  of  the  Court  of  Equity  is  usually  ^  ated  from,  this 
decree,  and  is  then  said  to  have  taken  its  origin  as  a  distinct 
tribunal.  Application  to  the  Court  was  made  by  a  bill.  In  early 
times  the  apT>lication  or  petition  was  vmdoubtedly  oral.  After 
the  court  wr  s  fully  established  c.s  a  separate  tribunal  the 
application  \Yas  in  writing.  After  the  filin,,  of  the  bill  in 
the  prop-r  office,  a  subpoena  wa.s  issued  to  the  defer.dant  and 
CO'  mr.ncin;;-  him  to  appe<  r  anc:  ansv/er  the  bill  of  complaint.  The 
subpoen;  is  said  to  have  been  invented  by  John  Le  V/altham  who 
the  keeper  of  the  Great  Seal  durin^j,-  the  reign  of  Richard  II  from 
1377  to  1399. 

In  seekin--  for  the  origin  of  the  Court  of  Equity 
in  the  English  Law  vie   must  look  to  the  select  Council  by 
v/hich  the  early  i'lorman  3:"ings  were  aided  in  the  performance 
of  th;^ir  Public  Functions .   This  council  consisted  of  the 
Chief  Justicar  and  the  Treasurer  and  other  hijh  officials 
considered  of  especial  importance  by  the  crown,  A.ccording 
to  the  English  Theory  the  Crovm  is  the  source  of  all 
Judicial  Power,  but  this  power  may  be  delegated.  By  means 
of  this  delegation  the  power  of  the  cor.rion  law  courts 
v/as  created.  In  theory,  however,  the  Judicial  Prerogatives 
of  the  Crovm  were  not  thus  all  exhausted.  So  it  came  to 
be  the  custom  for  suitors  v;ho  coulu  not  find  relief  in  the 
Coipjnon  Iiw  Courts  to  appeal  airectly  to  the  Crown  for  a 
remedy. 


III.  EQUITY  JirRIST'PTr:''^FCE.  JR.  IT.. 

In  deciding  these  cases,  the  crov/n,in  theory,  drew  upon 
this  reserve  Judicial  Power.   After  a  time  it  "becominj 
impossihle  i'or  the  Crovni  personally  to  dcide  .--ll  such  Cc?ses, 
reference  of  tJiese  ccises  \7ei^e  made  to  t]'.e  uemhers  of  the 
Council,  particularly  to  the  Ghancerllor.  He  v;?..s  net. rest 
to  the  person  of  the  '  overeicn,  tein,  his  secretary  and 
advisor.  Y/ln.at  was  at  first  occD,r.ional  became  in  i.   short 
time  to  "be  permanent.  And  in  the  tv;enty  second  yef^r  of  the 
reign  of  .'Edward  IJI  there  v/;  s  a  Royal  direction  that  all 
raatters  of  Grpce  shoiild  be  prosecuted  before  the  Chancellor. 
This  time  is  usually  spolcen  of  c.s  the  time  of  tli-^  oririn 
of  the  'Iquity  Court,  the  :2nd.   year  of  the  Rei^;n  of  Edv/ard 
III. 

"'ov;  the  delegation  of  aut  -ority  by  the 
Crovm  to  the  Covrim.on  Lav/  Courts  was  very   different  from  the 
authroity  conferred  on  the  :':quity  Courts.  In  the  Coi;n-::on  J^.w 
Courts  it  was  deles:;ated  in  each  particular  case.  This  authority 
;-.s  conferred  in  the  time  of  Edward  III  upon  the  Chancellor  in 
all  matter  of  grace,  was  different  in  tMs  that  it  e;ave  to  him 
general  jurisdiction  in  all  those  matters.  This  distinction  which 
was  a  f\in'.  cunental  one  in  Elagland  lias  no  existence  with  us.   In 
this  country  Courts  of  Law  and  Equity  derive  their  a/at::.ority 
from  Constitutions  or  statutes.  But  uncer  the  English  r.ystem  it 
v;as  delegated  in  each  particular  case  in  the  Coimnon  Law  Courts. 
But  the  delegation  to  the  Chancellor  was  general  in  all  matters 
of  grace,   /.t   the  time  of  this  decree  suits  in  equity  were  pro- 
secuted by  presentment  of  a  Bill  or  Petition  in  which  the 
cause  of  Complaint  wts  set  out.  Process  in  Equity  is  the 
Subpoena.  This  subpoena  comjnands  the  defendant  to  appear  and 
answer  plaintiff  anc  abice  by  the  order  of  the  Court,  ,  In 
Equity  the  Xing  v/ould  not  order  any  process  u;itil  ho  hac  heard 
plaintiff.  In  the  Coinmon  Law  Courts  the  course  was  different. 
The  Crown  delegated  its  aut^'ority  in  each  particular  case  by 
means  of  the  original  writs  and  the  writ  issued  first  to  bring 
the  defendant  into  court,  then  the  plaintiff  stated  his  cause 
of  action  in  his  Bill  or  Declaration.  In  Equity  the  bill  is  filed 
first  and  then  process  issues, 

I  have  used  one  or  two  tcriis  I  want  to  explain; 
On  the  Low  ^'ide  of  the  case  the  party  prosecuting  the  action  is  • 
usually  spoken  of  as  the  Plaintiff  and  the  other  party  as  the 
Lefencrnt.  On  the  Equity  side  of  the  Court  the  party  talcing  the 
initiative  is  callea  the  Com.plainint  and  the  other  party  is  laiowr 
as  the  defendant,  anc  in  some  states  the   responcent.  In  soue 
stat-^s  the  distinction  has  been  abolished,  that  is  so  in  the 
United  States  Courts.  But  in  some  states  ycu  wilj.  fin,"  this 
difference  I  have  explained.   In  Equity  the  complainant  files 
his  bill  before  any  process  issues,  then  the  subpoena  is  issued. 
I  may  say  that  this  method  has  been  adopted  in  n.ny   of  the  Coae 
States  on  the  Law  side  o.'  the  Court. 


III.  EQUITY  JUPJSPRUXSNCE.    JR,  12. 

While   the  aocount   I   ho-ve  given  you  about  tne 
origin  of  Equity  is  probably  correct,    it  is  not   the   one  you 
will   find  in  all   text  books.      I  have  followed  Spence,  Pomeroy  and 
Kirley.      And  I    think  that  this   one  is   supported  oy  good  authority 
and.  it  will  be  the   one  we  vdll   follow, 

A  large  part   of   the    jurisdiction  of   the  Court 
of  Equity  in  the   early  years  had  to   do  with  matters   of  trusts. • 
A  Trust  is  where   one  party  has   the   rights   to   the  benefits   of 
a  property  v/hile  the   legal  title   is   in  another ,      These  matters 
were   and  are   strictly  v/ithin  the   scope  of  :3quity  Jurisprudence. 
Bisphem  gives  a  large  number  of  cases,    taken  from  the  old  Court 
Calendar   showing  the   extent  of   the  Equity  Jurisdiction  during  the 
reign   of  Edward  III   through  the  Reign  of  Henry  VIII.      In  examining 
these    cases  we  become   aware   of   the   fact   tiiat  many   of   the  principles 
of   equity  which  are  in  force  to-day  were  recognized  during  the 
formative   period  of   tiie  Court  of  Equity, 

The   jurisdiction  of   the  Court  of  Equity  in 
these   early   days  was  in  substance   the   same  as   it   is   to-day. 
In  some  respects   its    jurisdiction  was  broader  tnan  it   is   to-day. 
The   same   spirit   characterized  the  Court   of  Equity   tiien  that 
characterizes   it  to-driy,   namely  the  spirit  tiiat  prompts  the 
Court   to   supply   the  deficiencies   of  the  law,    aiid  to  make   suitors 
do  wnat   in  equity   and  good  conscience  they  ought   to  do. 

As  you  have    seen  the  necessities   of   the   situa- 
tion gave   rise   to  this   separate   jurisdiction   in  England,      It  v;a3 
not  a  usurpation  of  the  rigiits   of   the  Coiimon  Law  Courts,    but  a 
necessity   created  by  the   demand  of  the  people   for  a  tribunal 
where  these   equitable  principles  might  be  administered   throu.^jh 
the   application   of   tiiese  doctrines  where   the  Common  Law  Courts 
utterly  failed  to   give  adequate  relief.      Luring  this   early  period 
we  find  many  cases  in  which  tiie  Court  of  Equity  would  take   up 
the  petition  of  a  poor  man  in   some  action  against  a  wealtiiy  one, 
v/here  he   could  not  have  oeen  heard  at  law  on  account   of  the 
expense   attached. 

In  the   early  History  of   the  Court  of  Equity  it 
v/as   governed  by  substantially  the   sanie  principles   that   govern 
it   to-day.      One  of   tae  most  important   cf   these  principles  is 
found   in  the  fact   that  Equity  always   strives   to  supplement 
defects  in  legal  remedies.      And   the   jurisdiction  of  the 
Equity  Court   during  the  Formative   period  was   in  some  respects 
broader  than   it  is   to-day,    althougix  in  its   essential  features 
it  has  always  been    die   saiae, 

Bispham's   Principles   of  Equity,   P'ar.    8, 

Pomeroy's  Equity,   Vol.    I.   Par.    36. 

— o — 

Oct.    2,    1902. 


I'^.  EQUITY  JTIRISPRUDEFCE.     JR.  13. 

Lecture    17. 

I  suggested  to  you  in  my  last  lecture  as  one  of  the 
reasons  necessitating'  a  separate  Court  of  /^^quity,  the  fact 
that  the  procedure  anc  process  of  the  Courts  of  Lav/  were 
meagre  and  inelastic  in  '^hr    extrene.  I  y/ould  su^-^est  that 
on  the  other  hand  that  -che  procsr'-re  of  the  Court  of  E-.^uity 
hps  fclv.'ays  shown  a  ten^^ncy  to  extend  its  jurisdiction  in- 
stead_  of  oeln,^  contracted  and  neagre ,  That  is  to  say,  that 
in  a  Court  of  "Equity  you  could  alr'ayo  accomplis::  results 
that  -.TOuld  l-.e  i:npoi;sible  in  o  court  of  lav;  or  example  the 
Court  of  Equity  has  alv/ays  exercised  the  ri^lit  to  -orohe  the 
conscience  of  the  parties  to  t!"e  contraversy.  Under  rhe  old 
system  of  evidence,  it  was  impossihle  to  swe.vr  a  party  to 
th?  contraversy.  You  could  not  rial:e  out  you  case,  if  -'ou 
were  aprearin^s  for  the  -..laintiff,  'sy  placin,,  the  plcintiff 
on  the  stanc  an:,  sv/earing  him,  it  was  thou-jht  that  narties 
interested  in  the  result  of  the  suit  could  not  or  v.'ould  not 
tell  the  truth  and  so  the  law  said  that  he  was  not  corarjetent 
to  te.-tify.  Or  if  your  case  lay  rathin  the  knov/ledje  of  the 
defendant  :'0u  could  not  put  tJie  defendant  upon  the'^stand 
...nd   swerr  him  because  the  Irv/  suid  that  "^s  was  an  interest- 
ed party  ane  was  not  a  competent  witness.   The  Court  of 
Equity,  hovrever,  has  alwr.ys  exercised  the  ri,5ht  to  hring 
the  parties  to  th  ,  suit  and  prohe  their  conscience  as  to 
the  facts  of  the  case  in  issue,  and  th  party  wcs  ohlised 
to  answer  under  penalty  for  contempt  of   ourt .  If  you  needed 
the  testimony  of  d  part  to  a  Gonii-non  Law  suit,  you  v/ould  have 
to  sue  out  a  "bill  in  equity,  ano  force  him  uncer  penalty 
for  contempt  to  ansv;er  the  questions  vanted,  anc.  then  his 
answers  could  he  used  in  evidence  to  prove   or  establish 
his  case  in  the  Common  Lav-  Court.  The  bill  v/as  very  freq- 
uently used  to  get  testimony  that  it  vras  impossible  to  ^et 
by  strict  ler_;al  virocecure.   The  bill  in  equity  for  that 
purpose  is  no  longer  needed,  for  this  cefect  in  the  method 
of  gettinr  th-;  evidence  of  interested  oarties,  has  been 
remedied  by  Ic^^islation.  You  may  put  an  interested  nar^y 
upon  the  stano  .^nd  swear  him  and  cake  his  testimony'  in  re- 
t,ard  to  the  case;  nis  bein,  m   interested  party  does  not 
renaer  him  an  incompetent  '-atness,  it  only  ^joes  to  effect 
his  credibility.   ?ut  very  frequently  it  becomes  neccessary 
to  file  a  bill  of  discovery  in  equity  in  order  to  probe  the 
conscience  of  i-.    V'a.rty   to  the  suit  in  order  to  m- ke"  out  the 
complainant's  case. 

There  was  another  advantage  equity  procedure  hac 
over  the  common  law  procedure,  I  refer  to  the  pov/er  to 
issue  preventative  remedies.   As  I  have  already  suii^ested 
the   ommon  law  Courts  pro(i:eds  upon  the  theorir   that  the  def- 
en  ant  is  not  ^.oini;  to  do  his  duty  and  tha-t  he  has  not  done 
his  duty,  the  common  law  judgrient  gives  d<  mag  s  but  cannot 
force  the  defendant  to  uo  his  duty.  It  ct^ngiot  prevent  his 
doing  v/h&t  would  be  against  his  duty  and  against  good  conscience. 


IV.  ?:qUITY  JTJRISPPUl.T^lICE.  JR.  14. 

The  Court  of  Ic'W  has  no  pov/er  of  issuing  the  ..<vrit  of  in- 
junction. The  Court  of  T^quity  has  always  hadjthat  ])0v;er, 
end  has  to-day.  You  V7ill  r-?  ember  that  the  dourt  of  T^quity 
is  extending  its  jurisdiction  on  account  of  ±ys  power  to 
restrain  a  party  from  do-'ni;  or  threatenin..j  to,'  an  in'ury 
to  another.  Government  by  Injunction  is  a  fcimj?liar  -p'-'.r&.r^e 
to  us  at  the  present  day. 

There  was  another  thin^j  that  a  coul^t  of  lav;  could 
not  do,  that  is  compell  the  performance  of  i    dxity  or  oblig- 
ation. /\   contract  is  enterec  into  for  the  sale  or  pu;~cho,ss 
of  land  bet-^een  two  parties.  At  Ooiimion  lav;  if  pne  of  the 
parties  fails  to  carry  out  his  part  of  the  contract  all 
the  other  party  can  do  is  to  sue  for  damages  for  tlie  breach 
of  the  contract.  ^le  may  not  want  damad,es.  He  may  desire  the 
land  for  v   particular  purpose,  a  resicence,  or  for  business 
purposes,  and  desires  that  particul8.r  piece  of  property, but 
all  the  remedy  the  law  affords  is  a  suit  for  damajes.Eut 
on  the  equity  side  of  the  court,  however,  he  may  compel 
the  other  party  to  perform  his  part  of  the  contract.  He 
^   may  compel  him  to  do  what  in  equity  rna  good  conscierice 

■  he  ought  to  do.   I  v/ill  not  go  into  details  and  explain  how 

■  the  cecree  in  equity  is  enforced,  but  I  will  simply  suggest 
that  it  was  acconplished  by  a  certain  compulsory  process, 
Pirst  by  a  writ  of  attachment  the  defendant  was  brought  in- 
to court,  ii  }ie  had  not  performed  the  decree  he  had  to 
purge  himself  for  contempt  and  if  he  failed  to  do  so  he 
was  put  into  prison  until  he  performed  the  decree  of  the 
Court.  If  he  "emained  contumacious  the  court  Wc,s  pov/erless; 
if  he  wanted  to  stay  in  jail  or  prison  all  his  life  rather 
thc.n  perform  the  decree  of  the  court  there  was  no  other  re- 
course against  hjm.   To  remedy  this  defect  in  modern  times 
in  most  of  our  states  pasr-ed,  and  I  think  in  all  of  them, 
which  provides  that  a  decree  in  equity  directing  the  defen- 
dant to  convey  lands  shall  be  self  executing,  that  is  tosay, 
if  the  defencrnt  d.  coes  not  of  his  ovm  free  will  carry  out 
the  orcer  of  the  court  shall  stand  as  and  for  a  conveyance, 
as  and  for  the  execution  of  the  contract.  There  is  a.  statute 
of  fat  kind  in  this  state.  In  other  states  you  will  find 
statutes  which  provide  that  under  certain  circumstances  the 
convey  nee  may  be  executed  by  some  officer  of  the  court.  So 
you  see  the  st;-.tute  has  come  in  and  supplied  what  was  a 
defect  in  the  old  equity  procedure,  so  that  the  pov/or  of 
the  "Equity  court  to  compel  t;v-3  defendant  to  perform  a  con- 
tract or  duty  snc   to  do  what  in  equity  and  good  conscience 
he  ought  to  do  is  even  greater  than  it  w^ s  under  the, old 
Regime, 

The  procedure  and  remedies  of  the  Court  of 
?lquity  have  always  had  a  tencency  to  extend  its  jurisdiction. 
As  an  illustration,  it  could  compel  the  exar:in.  tion  of  litigants 
under  oath  and  probe  the  consciences  of  parties,  Gr^mt  the 


XY.  EQUITY   JTJRIf^PRUTiENCE        JR.  vl5. 

reioedies   of  prevention  anc.  comoel  the  performance   of   contracts. 
In  "brief   it   coul;     take  hold  of   ohe  man  himself  anc.  make  him 
CO  his   C'Uty   in   ref"ard  to   the  matters  un-  er  contraversy.   This 
the   Court    of  law  could  not    do. 

The   first   Parliamentary   r,co,;nition   of  the 
Tenuity  -ourt   as   a   separate   and  distinct   tribunal  T;as 
durin      ohe   Reij^cn   of  Pichard  the    II,    luring  the   successive 
rei.vns   of  Henry. IV.,    Kenry   V.,    and  Henry  ^'I . ,    frequent 
op-osition   to    the   extending  jurisdiction   of  the  Chancellor 
was   cevelojied.   }\o  movement,    however,    wi.s  made   to  do  away 
with  the    Cd»urt    of  Equity.   The  movement  v/:  s   rather  in  the 
nature    of  ^'tcempts   to   aioridge   the  power  of  the   court    in 
certain   dii*ections .   Durinr   the    reign  of  Edward  IV  the 
principles,  that   were   to   govern  the   Court   of  Equity  had 
hscome   setrt^ed   anc    fixed  upon  a  "basis   and  within  limitat- 
ions  that^-Vere   practically  the    sejne   as   exists   to-day. 

/Perhaps   it   v;ould  be   desirable   for  me   to    state 
in  this^,  connection  that    durinc  the  Rei^ji   of  Kenry  VIII. 
a     ;2;tc^*:ute  was   passed,    which  at   first   v/as   thought   would 
pr«f{cyically   destroy  the  Jurisdiction   of  the   Court    of 
:2^uity.    Thet   was   the   Celebrated   Statute    of  Uses,    passed 
•'in^-^he  Rei[ji   of  }ienry  VIII.      The   effect    of  the      statute 
wt.s  to   turn  ri^ht  v/hich  v/ere  merely   equitable   and  tsiken 
.'boeiniaance   of  by  the  Equity  Court    into   legal  interests   or 
estates.   Use   is   the  beneficial  rifht    of   taking  the  pro- 
fits  cnt^    interest   from  a  property   or  estate  v/hile   the 
leg;.  1  title   remains   in   another.    -    holds   the    legal   title 
for  the   be    efit   of  B.      The  property   is  "conveyed  to  Sy  A 
with  the   express   stipulation  that  he    is  to  hold  the  pro- 
perty  for  the   benefit    of  P.   P   is   the  equitable    owner  of 
the  property.   A  holes  the   property   in  trust   for  T-,    .  t   the 
present*  tim.e    the    situation  would  be   that    of  a  trust 
rather  than  that   of   a  use.      After  the   passage    of  this 
statute   the   nomenclature  v/as   changed  and  it    is  now  known 
as  a  trust.   Vovr  the  Use   or  modern  Trust  was  peculiarly  a 
subject    for  Eauity  jurisdiction.      To   impress  upon  you  the 
T^agnituc.e   of    this   jurisdiction  I   will  say  that    at  the    time 
of  the   passage    of   this  act,    that    two   thirds   of  the    land  in 
England  was  held  by  trustees.   The   Staute   did  away  with 
the   equitable    interest   altogether.      If   it   he  d  been   aloowed 
to   stanc    vpon  that    interpretation   it  would  practically 
hav '    done    av/ay  v/ith  the    equity  jurisdiction,      But   as  you 
mr.er.iber  t']p.e   court  held  th&t    it   id  not   apply  to   certain 
cases,    that    it    did  not   apply  to  personal  property,    that 
it   did   not    apply  to    resulting   or   constructive   trusts,   iintil 
there  was  "only   one    case   to  v/"  ich  the    statute   did  apply, 
and  in  that    case    it   wc.s   avoided  by  adding  another  party 
to   the    conveyance.   Apparently  a   large   part    of   the   equity 
jurisdictipn  was   taken  av/ay  by  this   statute  but   by  the 
const  rue  t:i,on  by  the    courts  and   the   narrowness   of  the 


IV.  EQUITY  jLTi'T>rjrT;rc]^.  jr.     16 

statute  itself  it  was  rendered  of  liitle  effect. 

rURINv;   THE  r^F.lG}:  O:^  JD^ITRY  VIII.    the   statute    of  Uses 
was  pass-^d  and  a   larj^   part    of   the  jurisdiction   of   the  Equity 
Courts  WfS   apparently   taken  av/ay  "by   its   enactment.   It   apr^rafently 
changed  the   use   vhich  was   £n   equitable   estate   or   interest    into 
a   lei-al  estate.   This   result   ]iov;ever,    'vas  prev  nted  hy  the   in- 
genious-  construction   of   the    statute  v;hereby  t\e    control   of  the.  e 
equitable   estates  un^  er  zhe   nvjne   of  trusts  were   retained  by 
the  Equity  Court, 

Except   by   this    lef/i    lation   in  Parliaiaent,    no 
objection  by  Parliament   appears  after  the  Rei£sn  of  Kenry  VI.. 
Objection  from  the   Conumon  Law  Juclijes   continu'3d  dovm  to   the 
Reirn   of   James   I,   Thej    objectad  particularly  to  the   restraining 
by   injunction   issued  out   of   the  E  uity  Court    of  actions   pending 
in  the   Lav;  Oourts, 

It  may  appear    straiige   t'lat    one   court   can   say 
to  another,    you  stop   ."Our  proceedin.  s   in  this  particular  case. 
The   court    of   equity  has   alwa3'"s   hac  thrt   authority   and  exercised 
it    in  c-ppropriate   cases,     Y..h.enever  there    is   ^    question   in  i\ 
Lav/  Court   involving  the   rpplication   of  equitable  principles, 
the  party   liable   to   uefeat   asks   for  ,. n   injunction  a^  t.inst   further 
proceedint^s   at    law,    an.    ^hut    the   v/hole  action  may  be   taken   into 
the   Court   of  ?]quity.        The    injunction  may  always   issue   to  res- 
train proce   din^s   at    law  ^here   it    is   necess:  ry  that   full  and 
complete   jnstice  bet-.-een  the   parties    should  be   done,   ?or  ex- 
rmple    I  have   a  contract   for   the  purcho,se      of   real  property, 
have  been  put    into  possession   of  the   property,    I  have  paid  part 
or  all  of   the   purchase  price,    the  holder   of  the   lethal  title    is 
not   in  possession  but   brings   an  action   of  ejectment   against  me 
claiming-  that   he    is   the   ovmei    of    the   property,    it   is   r    quest- 
ion  of  title   B:a^  hence  he  must  previil   in  the    lav  court,  I   have 
not    the    le,i;al  title,    I  have    simply  a   contract   to   the   e.-iect 
that    some    r-ay  unon  the  pe^-f omrnce   of  certain  things,    that    is 
t^i.e   pajonent   of  t'"!.e   purchase  price  he   v/ill  convey  the      le^tl 
title   to  me.   ?ut    I   h8.ve  by  virtue    of  my  a.^re  raent   an  eciUitable 
title,    I   could    do  nothin?^   on  the    law  side   for  an  equitable 
defense   could  not   be    imposed,    I  r.ust   r;o   on  the   equity  side   ;  nd 
file  my  bill   c.nc    set   up   all  the    facts  and  ask  the   court    to   res- 
train further  proceedint^s   in  the    law  court   t  nc.    to  settle   the 
contraversy   in  j-n   equitable   ^jroceeding.   The   common   law  judges 
die  nox   desire   to  be    interfered  with  in  that  way.   But   their 
objection  were  wit]iout   effect.   Previous   to  the  passa  e    of  the 
"English  Judicature   /ct    in   1873,    there  had  been  ^reat    improve- 
ments  in  the   practice      nc    procedure    of   the  Equity  Courts   and  in 
consequence   they  had  grovm  :,reatly   in  favor.      There   vr.  s   a   time 
however  when   equity  courts  v;ere   held   in  bad    repute    on  account 
of   the   d   la.y  and    the   great   i^rolixity   of   its  pleadin,;.   In  the 
early   rlays,    the   jurisdiction   of   the    court   was   administered  by 
the  Chancellor  alone,    as   the   writ    of  Edvard  II  was  that    all 


IV  Equi'iT  JTOispniT  riNCE.    jr.  17 

mf.tters  of  Gracg  should'  "be  referrec".  to  the  Chancellor.  This 
custom  was  changed  by  various  enactnents,  ana  at  -.he  time  of 
the  passa,  e  of  this  act  the  power  v/as  linr-lly  distributed 
among  ei^ht  jud,:^es. 

But  the  court  of  e  uitj'-,  after  an  existence  of  over 
six  centuries  as  a  distinct  tribunal,  has  dissapeared,  rji~  the 
double  system  of  Courts  which  so  lont^;  seemed  inc  esponsable 
l}as  finally   passed  away.  Do  not  un>  erst  and  me  to  say  that  the 
administration  of  equity  h^s  disappeared  in  En^'land  for  that  is 
niot  so,  ''ut  the  existence  of  a  court  of  equity  as  a  distinct 
tribunal  has  disappeared, 

By  the  Tupr^me  Judicature  Act  of  1673  it  was 
provided  that  the  sei^eral  courts  in  England,  to-wit,  the 
T-Ii^h  Court  of  ...-Chancery,  the  Cor.rt  of  the  Que  ns  Tench,  the 
Court  of  Common  Pleas  at  Y'estminister ,  the  Court  of  Exchequer, 
the  'Tigh  Coiyrt  of  Admiralty,  the  Court  of  Probate  ant.  the  Court 
for  rdvorce/ and  ITatrimonial  causes  and  the  London  Court  of 
bankruptcy 'shall  be  united  and  consolidated  together  anc.  shall 
constitute,  one  Supreme  Court  of  JudiCc-tare  in  Englana. 

>;ot;  while  the  Supr.me  Court  of  Judica-.ure  /ct  of 
1673  wa^  pendin£i  before  Parliara  nt,  the  effect  upon  Justice 
In  Engl^.nd  was  a  question  of  much  discussion  in  Judicial  circles 
and  it 'was  thought  it  might  result  disastrously  and  that 
equitable  ri^h.ts  mi^ht  disappear  altogether  and  its  place  be 
taken  by  arbitrai'y  laws.  To  avoid  t'-i-is  the  Act  was  ajTiended  by 
the  aid  of  the  follov/ins  clause.  Tliat  in  cny  matter  in  which 
there  shall  be  any  conflict  between  the  rules  of  equity  and 
the  rules  of  conF.ion  law  with  reference  to  the  same  matter  the 
rules  of  equity  shall  prevail.   That  is  the  savinc  clause  in 
the  act.  3y  the  provisions  of  the  Judicature  act  cJid  other 
later  le.iiislation  upon  the  same  subject  the  principles  of  equity 
have  been  diseminated  throughout  the  entire  l)06y   of  the 
English  jurisprudence.   Each  division  of  the  court  may  ex- 
ercise equity  jurisdiction  over  all  matters  where  the  principls 
of  equity  vre    involved,  that  come  before  it,  /nd  as  I  have 
said  if  "-.here  was  any  conflict  between  the  rules  of  law  anc  the 
rules  of  equity  in  regard  to  the  subject  matter,  the  nales  of 
equity  must  prevail. Py  the  tenns  of  the  act  equity  jurisdict- 
ion is  conferred  upon  every  "^n^lish  Judge  and  he  is  bound  to 
exercise  it  whei^i  the  case  should  be  decided  upon  equitable 
^rovmd. 

The  old  formality  of  the  Common  Law  Pleaointi"  is  no 
loirer  necessary.  But  there  is  such  a  fundamental  difference^ 
bet./een  law  andy  equity  proceaure  that  you  cannot  by  legislation 
mc'ke  them  the  3£jiie.c  If  you  bet:in  a  suit  for  equitable  relief 
it  is  still  necessary  to  pray  for  relief,  v/hile  in  a  suit  at 
law  the  action  imust  be  for  drjiiages. 

;The  Ebglish  system  to-day  of  Equity  procedure 
cnc.  ^!ommon  Law  J)rocedure  is  practically  the  same  as  the  code 
or  reformed  procedure  in  this  country.  The  English  people  had 
in  mind  the  sucicess  of  the  ch.-nge  made  in  Kew  York;  as  I  rem- 
ember, ITr.  Eie]ld,  v;ho  v/as  the  author  of  the  New  York  Code  was 
j?\immoned  to  England  by  the  Committee  v;ho  has  the  proposed  Ref-" 
of  the  E  glish  /syVtem  in  che-rge  and  was  examined  at  length 


IV.  Z^QUITY  J'lmiSPRTJjTENCE      JR.  18 

them  in   rG.,ard.  to   the   result    of   the  New  York  Code. 

The   authority  originally  eyercised  by  the 
ChiancGllor  vrav,   subsequently  distributed  among   severc.l  equity 
Judges,   The   Court    o  Equity  as   a  distinct   tribunal   ceased   to 
exist   in  England  from  the   taking;  effect   of   the   Judicature  /.ct 
of   1873.   This     Act   provided  that   the  English  Courts,    namintj 
them,    including    i  he    Courts   of  Equit;/    should  be   united  and   cons- 
olidated and  should   constitute    one    supre   Court    of  Judicature. 
This   Court   was   to   consist    of    two  Divisions,   her  I'agesty's 
High  Court    of     Justice,    i-nd  her  Maj'esty's  Higli   Court    of  Appeals, 

Ey  the  Act   a   single    syster   of  procedure   was   e.-t    blished  and 
equity  powers  v/ere   conferred  \ipon  all  the   dicisions   of    the 
Court.   By   special  provision  the  principles   of  equity  are   to 
prevail  v/henever  there    is   ;  r^   contraversy  between  equity   end 
law. 

If  any  of  ;.ou  desire   to   continue   the    subject 
farther,    you  will  find  material   in: 

Spence's  Equitable   Jurisdiction, 

Park's  History  of   Chancery, 

Kirley's  Kistoiy   of  the   Court    o     J'^quity, 

Reeves'    Kistor^''   of  the   English  Lav/ 

T^omeroy's  "'quity  Jurisprudence  Vol.    1,    Sec,    1. 

vtory's  Equity,    Vole    1  Chap,      -3, 


•oOo- 

Oct,    3   1902, 


V.  EQUITY   JURISPHUDENCE,    JR.  18. 

LECTTJKE  V. 
))0(( 

I  have  given  you  a  pretty  full  account  of  the 
.■^nglish  "quity  System  and  the  ori-in  of  Equity  in  the  English 
law  hut  as  yet  I  have  said  nothing  ah out  the  Court  of  Equity 
in  the  Unit  3d  States.  Now  you  are  all  v/ell  av^are  that  we  re- 
ceived our  -•Equity  System  from  England.  Lfe.ny  of  the  states  have 
provided  for  separate  courts  of  'Equity  hy  their  different  con- 
stitutions. That  was  the  case  in  I'Tew  York,  New  Jersey,  Ivlaryland, 
j'elav;are  and  South  Carolina  and  later  in  Michigan,  but  the  matter 
was  afterwards  changed  so  that  the  same  Judge  hears  Equity  and 
law  cases,  although  the  procedures  are  kept  distinct.   The  tend- 
ency in  this  country  has  been  to  do  away  with  separate  Equity 
Tribiinals.  We  have  to-day  separate  courts  of  Chancery  in  a  few 
Southern  states  and  in  New  Jersey.  The  New  Jersey  Court  of 
Equity  is  one  of  National  reputation,  '"e   find  New  Jersey  Equity 
reports  frequently  referred  to.  In  many  of  the  states  equity 
jurisciction  was  conferred  upon  the  common  law  courts.  The 
state  of  Massachusets  for  a  long  time  had  no  separate  equity 
tribunal.  The  Court  of  Equity  is  of  comparatively  recent  ori- 
gin in  the  state  of  Hassac^usets.   There  was  a  great  deal  of 
aiitagonism  to  the  establishment  of  such  a  court  by  the  people 
of  that  state.  But  the  Legislature  has  gradually  conferred  powers 
of  equity  and  Equity  Jurisdiction  on  the  cor.imon  law  courts.  Th-; 
saar.e  is  true  in  Pennsylvania,  there  the  jurisdiction  of  equity 
has  been  of  slow  growth.  It  has  been  devolved  largely  throxigh 
the  common  law  courts.  For  example  the  common  law  actien  mr,y 
be  tried  as  an  equitable  action  if  the  necessities  of  the  case 
demanris  it.  This  empowering  the  common  law  courts  with  equity 
jurisdiction  first  began  in  the  state  of  New  York  in  the  Forties 
when  the  Field  Code  of  procedure  was  first  introduced  into  that 
state.  It  abolished  all  distinction  between  co'-mon  lav;  and 
equity  so  far  as  the  mode  of  procedure  v;as  concerned  and  that  . 
is  the  case  in  all  ..the  Code  States,.  There  are  certain  features  """ 
of  the  Equity  System,  however,  which  are  impossible  to  be  en- 
forced through  the  coram.on  la.w  process,  In  such  cases  it  _  is 
absolutely  essential  that  the  procedure  on  the  equity  side  of 
the  court  should  be  different.  l^Hien  we  go  on  the  Law  side  of 
the  court  we  seek  a  judgraent  for  damages,  when  on  the  equity 
siae  we  seek  relief.  So  even  in  a  Code  state  if  you  seek  dojnag- 
es,  you  must  praj'-  for  damages,  and  if  you  seek  for  relief,  you 
must  pray  for  relief.  Teparate   roceedings  are  always  established 
for  such  cases  as  injunction  and  ne  exeat  and  for  appointments 
of  receivers.  In  the  Code  states  having  a  single  form  of  action 
in  Law  and  Equity  these  cases  have  usua  ly  been  provided  for 
in  a  separate  and  distinct  form  of  action. 

By  the  Constitution  of  the  United  States  the 
Courts  of  the  United  States  are  riven  full  jurisdiction  in  Equity 


V.    _.  I^QUITY  JTO.ISPP.U7.EKCE   Jr.  19 

t 

and  in  Law.  From  the  first  down  to  tjie  present  &vy   the 
practice  on  the  Law  side  of  the  Court  has  been  separate  and 
distinct  from  the  practice  on  the  Equity  side  of  the  court. 
It  is  modeled  after  the  High  Court  of  Chancery  in  "n^iland  ex- 
cept as  th; t  practice  has  been  changed  by  special  rules  of  the 
Court.  ReiTuamber  that  even  if  you  are  practicing  in  a  Code  Stato 
where  there  is  no  separate  Equity  procedure,  if  it  becomes  nec- 
essary' for  you  to  step  into  a  United  States  Court,  that  you 
are  then  in  a  place  where  a  separate  Court  of  Ch£t,ncery  exists. 
Vhen  you  bring  a  suit  on  the  lav/  side  of  the  court,  you  may 
adopt  the  procedure  of  the  state  where  the  United  States  Tourt 
ha  pens  to  be  sitting.  It  was  a  great  deal  e:sier  in  n^  judgment 
to  get  alon/3  without  knowing  equity  under  the  old  system  where 
there  was  a  S3parate  court  of  ch8,ncery  than  it  is  at  present 
under  the  code  procedure,  for  in  a  Code  state  equitable  prin- 
ciples nay   be  appealed  to  for  the  decision  of  the  case  in  what- 
ever jurisdiction  the  case  arises.  You  do  not  have  to  go  into 
a  distinct  equity  court  to  bring  a  case  in  v/hich  there  is  in- 
volved equitable  principles,  but  they  may  be  applied  in  whatever 
court  you  start  your  suit.  Under  the  old  system  of  procedure, 
if  a  man  did  not  know  the  principles  of  equity  and  equity  pro- 
cedure he  could  keep  out  of  it,  but  he  cannot  do  tliat  under  tho 
Code  system  of  procedure  for  every  court  is  a  court  of  equity. 
"  In  some  of  the  states  of  the  Union  there  have  been 
from  the  first  separa.te  Equity  Tribunals,  modeled  after 
the  High  Court  of  Chancery  in  England.  In  other  states 
there  never  were  separate  equity  courts  but  Equity  Powers 
have  been  from  time  to  time  conferred  by  Statute  upon  the 
Common  Ia,v;  Tribunals,  In  many  of  the  states(the  majority 
bt   the  present  time)  there  is  no  distinct  and  separate 
"Equity  procedure  but  legal  and  equitable  principles  are 
enforced  through  a  single  form  of  action.  The  states 
may  be  grouped  or  classified  as  follows: 

1st,  Those  states  wherein  distinct  Courts  exist,  in- 
cldding  iNlew  Jersey,  Kentucky,  Delaware,  Mississippi, 
Alabama  and  Tennesse, 

:.;nd.  Those  states  in  which  Chancery  powers  are  exer- 
cised by  the  Judges  of  the  Comjiion  Law  Courts,  but  accord- 
ing to  a  separate  system  of  pleading  and  procedure.  This 
class  includes  the  New  England  States(  Excepting  Conneticut 
which  has  been  recently  changed  by  staute)  Pennsylvania, 
Maryland,  Virginia,  West  Virginia,  North  Carolina,  Georgia, 
Illinois,  Texas,  Elorida,  Michigan,  Arkansas  and  the 
Dakotas,  in  which  there  is  .separate  equity  procedure,  but 
the  same  judge  hears  equitable  and  law  cases, 

3rd.  The  third  group  comprises  all  the  other  states, 
and  which  is  charactei'ized  by  the  abolition  of  the  dis- 
tinctions between  actions  at  law  and  stdts  in  Equity. Legal 
and  Equitable  principles  are  enforced,  as  a  rule,  by  means 
of  the  civil  action.  These  are  known  as  the  Code  states. 
The  United  States  Courts  come  under  the  second 
class  above  enumerated.  In  these  courts  there  is  a  separate 
System  of  equity  pleading  and  procedure,  that  is  modeled 


V.  EQUITY  JLT.ISPRbTKNCE  JR.  ;-:0. 

very  closely  after  the  Plea'-'ing  anct  Procedure  of  the  High 
Court  of  Ohancery  in  ^'ng.'and." 

You  now  have  an  outline  of  the  Judicial  Machinery 
of  this  country,  and  I  v/ish  now  to  look  at  the  s+ructure  of 
the  Courts  of  equity.  I  desire  to  contrast  it  with  the  machinery 
of  the  common  law  courts.  How  does  it  differ  from  the  lav/? 

One  of  the  striking  differences  between  the  law 
and  equity  courts  as  it  exists  in  this  country  to-do,y  is  found 
in  the  fact  that  in  equity  cases  as  a  general  rule  Wu  have  no 
jury,  'quit?-  cases  are  tried  and  determined  by  the  Chancellor 
or  Judge  sitting  as  an  ■' quity  officer.  On  the  lav/  side  of  the 
court  ajl  questions  of  fact  must  be  determined  by  a  jury  unless 
the  jury  is  v/aived  by  the  parties.  In  most  states  statutes  pro- 
■•.'ide  for  the  waiver  of  a  jury  if  the  parties  agree,  but  if  the 
party  insists  upon  his  Consitutional  right  of  trial  by  a  jury 
,  of  his  p-;er,  then  a  jury  must  be  procured.  Equity  passes  upon 
qi-.estions  of  law  and  fact  without  the  injbervention  of  a  jury, 
Although  we  may  in  certain  cases  have  a  jury  in  an  equity  suit. 
If  the  judge  is  uncertain  as  to  what  decision  should  be  given 
on  the  facts  he  nay  summon  a  jury  to  assist  him.  But  the 
summoning  of  a  jury  is  a  matter  v/ithin  the  discretion  of  the 
court,  the  parties  have  nothing  to  do  with  it.  The  constitution 
gives  them  no  such  right.  It  is  a  very  rare  thing  for  the  equity 
court  to  sumj.ion  a  jury.  In  some  states  a  jury  is  summoned  more 
frequently  than  in  others,  especiall  i.-i  Hew  York,  in  which 
state  equity  courts  veiy  frequently  summon  juries  to  assist 
them,  particiilarly  in  divorce  canes.   There  is  this   difference 
between  a  jury  on  the  equity  side  of  the  court  and  a  jury  on 
the  law  side  of  the  court,  on  the  law  side  the  der^ision  of  the 
jury  as  to  maisters  of  fact  is  final  until  the  verdict  is  set 
aside.  On  the  equity  side  of  the  court  the  finding  of  the  jury 
is  merely  advisory.  The  ''ourx  may  receive  it  or  not  as  he  desires, 
It  has  no  binding  force  upon  any  one.  In  the  first  place  the 
parties  are  not  entitled  to  summon  a  jury  on  the  equity  side 
and  in  the  second  place  the  finding  of  the  jury  is  not  binding 
on  the  e'quity  side  of  the  court. 

We  also  find  this  difference  in  the  trial  of  cases  on 
the  equity  and  law  side  of  the  court,  on  the  law  side  of  the 
court,  where  there  is  a  jui-y  the  witnesses  are  produced, sworn 
and  testify  in  the  presence  of  the  court  and  jury.  The  Court  and 
jury  have  'an  opportvinity  to  see  the  witnesses  and  to  judge  and 
discriminate  as  to  the  weight  to  be  given  to  the  testijnony  of 
the  different  witnesses  from  their  acts  and  aj^pearance.  On  the 
equity  side  of  the  court,  the  testimony,  as  a  rule,  is  not 
taken  in  open  court.  It  is  not  taken  before  the  Judge  but  be- 
fore a  commissioner  or  Ifester  in  Chancery,  The  testimony  of  the 
several  witnesses  is  taken  dovm  in  writing,  and  signed  and 
sworn  to  by  the  witness  and  under  the  seal  of  the  official  be- 
fore whom  the  testimony  is  taken.  It  is  then  either  hajided  over 
to  the  Judge  or  read  to  him  by  the  attorney  on  the  trial  of 
the  case  or  final  hearing  before  the  juuge.  There  are  som.e 


V.  EQUITY  JURISPEUDMCK  JR.  'M 

disadvantages  in  this  system.  You  do  not  have  the  v/itnesses 
"before  the  court  and  he  must  glean  the  character  of  the 
testimony  from  the  written  page.  But  in  the  state  of  Michigan, 
pnd  I  prosiane  it  is  the  rule  in  most  all  the  statps,  if  you 
desire  to  take  the  evidence  in   open  court,  you  may  do  so  hy 
giving  notice  to  the  opposite  parties.  You  have  to  give  them 
notice  within  a  certain  time  fixed  by  statute  after  issue  is 
joined.  Then  the  witnesses  are  brought  before  the  Court  and 
sworn  and  examined  as  in  lav-  cases.  The  testimony  is  taken  dovm 
hy   the  stenoghrapher  and  not  read  to  the  court  because  the 
testimony  is  heard  by  the  judge.  It  has  its  advantages  because 
sometimes  the  evidence  when  not  taken  in  open  court  is  not  read 
by  the  court.  The  testimony  is  simply  turned  over  to  the  court 
and  he  is  assujned  to  read  it.  You  then  make  you  arguments 
before  the  court  and  base  your  arguments  upon  the  testimony 
that  has  been  taken  b^'fore  the  Ifester  in  Chancery,  The  Court 
can  decide  the  case  then  or  take  it  under  advisement  and  hand 
d.o\r!i   a  decree  later.  He  never  dravs  up  the  decree  but  it  is 
draTivn  up  by  the  attorneys  after  the  judge  gives  a  memorandum 
of  what  the  nature  of  the  decree  will  be  and  in  whose  favor. 

The  equity  procedure  is  a  leisurely  procedure. 
The  testimony  may  be  taken  at  any  time  that  is  convenient  for 
the  parties.  But  there  is  this  further  objection,  however, <^n 
equity  cases  all  evidence  must  go  in.  The  master  in  Chancery 
has  no  authority  to  exclude  any  evidence.  You  must,  however, 
state  your  objection  and  the  ground  of  objection  because  v/hen 
it  comes  to  a  final  hearing  before  the  Judge  the  objection  may 
be  insisted  upon.  But  the  judge  in  ruling  upogi  the  objection 
y;ill  have  to  read  the  evidence  objected  to  and  may  be  unconsciously 
affected  by  the  testimony  which  is  improper  on  account  of  being 
irrelevant  or  immaterial  or  incompetent, 

I  may  say  for  the  benefit  of  the  Tlichigan  students 
that  we  have  no  Master  in  Chancery  in  this  state.  The  Ma.ster  in 
Chancery  is  an  officer  recognized  by  most  states.  We  have  in- 
stead of  a  Master  in  Chancery  a  Circuit  Court  Commissioner,  So 
in  all  equity  cases  the  testimony  is  taken  before  the  Circuit 
Court  Coiiimissioner, 

SOICE  POIilTS  0?  DIFFERENCE  BETV/EEN  THE  LAW  COURTS 
AND  EQUITY  COURTS, 

Law  Courts  mayalways  have  a  jury  for  the  decisions 
of  questions  of  fact.  In  the  Equity  Courts  a  jury  is  un- 
usual, it  may  be  summoned  by  the  equity  judge  but  the 
parties  have  no  right  to  the  jury.  In  the  lav/  courts  the 
verdict  of  the  jury,  if  regular,  is  binding  and  decisive. 
In  Equity  Courts  it  is  simply  advisory.  In  law  courts  the 
testimony  is  taken  in  open  court.  In  equity  courts  it  is 
taken  before  the  Ivlaster  in  Chancery  (in  the  state  of  Mich- 
igan before  a  Circuit  Court  Commissioner).  In  law  courts 
improper  evidence  is  excluded  upon  the  trial.  In  equity 
courts  all  evidence  goes  in  before  the  Master,  but  may  be 
excluded  by  the  judge  upon  the  hearing  of  the  case. 


VI.  EOUITY   JURIFTPUDENCE.      JR.  22, 

TJ^CTTOE     71 . 
—  0-- 

Eefore  takirie;  v.X)  the  principles  of  equity  as  it  is 
acjninistered  in  the  Courts  of  equitj'"  to-day,  I  wish  ta  &ay  a 
word  or  two  \7ith  regard  to  the  general  scheme  of  the  courts. 

Undouhtedly  curiri:^;  the  early  history  of  the  court  of 
Equity  the  indivicujl  conscience  of  the  Chancellor  played  ;  n 
important  part,  J'urinc  the  'onnr.tive  poriod  there  v/ere  no 
settled  principles  or  precedents  ani  the  chancellors  decided 
cases  tiiat  came  befor-e  them  accod-ding  to  their  vievs  of  good 
conscience  ani  equity,  Th^y  appealer  to  their  personal  conscience, 
This  Y/as  unc'cuhtedly  the  character  uf  equity  c.ecisions  while 
passin:,  thr  tx,  :h  its  formative  period.  They  attempted  to  Kiodify 
the  rules  of  lav/  where  they  considered,  them  harsh  anc  unsuited 
to  the  particular  case  and  to  su;^ply  remedies  where  the  law 
was  deficient.  "Rut  hy  so  cL  deciding  each  case  they  formed  pre- 
cec'ents  i-nd    so  in  time  a  body  of  precedents  was  formed  so  that 
later  the  conscience  of  the  chancellor  "be^an  to  be  governed  and 
regulated  by  this  body  of  precedents  in  their  decisions  of 
chancery  cases.  Vith  the  increasing  number  of  preceoents  an 
orderly  system  of  equity  was  developed  that  did  av.-ay  with  the 
personal  conscience  of  the  chancellor.  So  te-day  when  v/e  speak 
of  the  conscience  of  the  court  of  equity  we  mean  the  juridical 
conscience  and  no  the  individual  conscience  of  the  cliancellore 
The  individual  conscience  as  guided  by  the  fixed  principles  of 
equity.  In  deterraing  case  the  clirncellor  is  boiini.  t  o  be  govern- 
ed anr  guided  by  certain  fixed  principles  laid  dovm  in  precedents 
anc  does  not  a'^peal  to  his  own  individual  conscience,  I  do  not 
wish  to  convey  the  idea  that  the  court  of  equity  followed  pre- 
cedents in  the  Scune  slavish  way  that  the  comm.on  law  judges  did, 
and  that  they  were  bound  by  the  letter  of  the  preceaent.  They 
used  them  as  guides  in  their  decisions  and  were  able  to  extend 
them  so  as  to  fit  new  relations,  ."  common  sense  application  of 
prece  ents, 

NATURE  0  '  lilOUITY. 
In  the  fomu'.tive  period  of  the  equity  court  cases 
were  imdoubtedly  decided  by  t'le  Chancellors  according  to 
their  personal  notion  as  to  what  the  proper  remeciy  should 
be.  In  a  general  way  it  mey  be  said  tliat  the  court  of 
Chancery  during  this  period  was  engaged  in  tempering  the 
harshness  of  the  lav;  and  in  furnishing  relief  whe'-e  the 
law  failed  to  give  it.  L'uring  the  formative  period  there 
was  necessarily  considerable  inconsistency  in  the  decisions 
of  th'^  court  of  chancery.  .-■,  body  of  prece^-ents  that  served 
to  limit  and  control  the  decisions  of  the  equity  tribunal 
at  length  was  formed.  Equity  judges  began  to  decide  cases 
according  to  settled  principles.  These  were  not  followed 
slavishly  but  rs  guides  simply.  The  conscience  of  the  court 
Cf  me  to  be  a  juridical  conscience  ;.'nd  not  a  personal  one. 


VI.  :^OUITY  JURISPPUT'EITCE,  JR.  ,1;3. 

No-  from  what  I  liave  said  you  have  ;:^ot  an  idea  of 
the  nature  of  equity  during-  -che  infancy  of  the  court.  The  nature 
of  equity  is  a  great  deal  riif-Po^«rit  to-day  from,  what  it  was 
^,,j.j_„^  the  "Normative  p-':>riod.  ITo  equity  court  te-d-y  v/ould  attempt 
to  c'ecide  o    case  hy  a  pealing  to  his  own  conscience,  to  his  ow;i 
standard  of  right  e^nd  justice.  The  cepartures  of  the  equity 
court  are  within  settled  principles.  The  mcc'ern  c^iancellor  is 
governed  hy  equitable  principles  emhodled  in  precedents. 

Equity  to-day  as  administered  in  our  courts  is 
a  system  of  3'urispradence  founded  upon  precedents  of  right, 
justice  c.nc  morality  as  exp;  lined,  set 'led  r.nd  promulgated 
in  the  decisions  of  its  courts.  It  has  cape  city  for  an 
ord  rly  tni    regular  growth  in  the  direction  of  its  settled 
principles.  As  a  system  it  is  flexiole  and  may  alwc.ys  he 
extended  to  new  conditions  and  to  new  relations, If  i^ou 
wish  to  inquire  more  into  the  nature  of  equity  than  is  foxmd 
in  these  few  suggestions,  I  wish  you  v/ould  read: 

Story's  Equity  Jurisprudence,  Vol,  I,  Chapt .  I. 
So  much  for  the  nature  of  Equity  I  will  now  pass 
to  a  hrief  outline  of  the  subject  of  equity  as  v;ill  be  treated 
in  this  course  of  instruction.  Equity  is  a  science  and  like 
any  other  science  has  its  maxims.   There  are  general  and  special 
maxims.  The  general  maxims  apply  to  equity  as  a  whole  and  the 
special  maxims  only  apply  to  particult.r  parts  of  equity.  In 
this  course  vre  will  have  to  do  with  the  gen";ral  maxims  of 
Equity.   This  course  will  be  divided  into  four  parts.  The  first 
part  will  be  devoted  to  the  general  maxims  of  Equity,  In  these 
generpl  mrjcims  you  will  find  the  great  fundamental  principles 
upon  which  the  sys"^. em  rests, 

GEl^R/L  OUTLI^T;  Oj'  Tim   SUBJECT  0?  EruiTY, 
1st.  General  TIaxims  of  Equity, 

Equity  is  p.    science  ■.  nd  like  ev-ry  other  science  has 
its  mexias.  These  general  ma::ims  are  the  embodiment  of 
the  fundejnental  principles  of  equity. 

A  rn£:xim  is  an  embodiment  of  a  truth  in  a  shor'c  and 
familiar  saying. 

Erom  what  I  have  said  to  you  in  connection  v;ith 
the  nature  cmd  history  of  equity  you  have  learned  that  there 
are  certain  Titles  only  r  cognized  -nd  enforced  in  a  court  of 
equity.  The  second  division  of  the  subject  deals  with  these 
equitable  titles.  An  Equity ble  Title  is  one  that  is  recognized 
vnc   enforced  only  by  a  court  of  equity.  As  an  illustration,  a 
"oiece  of  property  is  given  to  me  by  r-  neighbor  v/ith  the  under- 
st:nding  that  I  shall  hoi.  the  prope-^ty  for  the  benefit  of 
another  party.  The  legal  title  to  that  property  is  in  me  but 
by  the  terms  of  the  agreement  I  am  bound  to  hold  it  for  the 
benefit  of  the  party  named.  On  the  law  side  of  the  court  the 
third  party  would  have  no  standing.  He  could  n^t  come  into  court 


VI.  EQUITY  Oir^ISPI;ir:'':i:CE.  JT..  ::A 

and  "','.- Ice  me  ro  ny  cuty.  In  the  law  court  I  rm  the  phsolute 
owner  of  that  property,  hut  on  the  equity  side  I  nay  be  broUt^^ht 
to  an  accouiitinc.  It  is  the  equitable  title  that  the  equity 
court  reco^Hises  ^viiich  If-   vested  in  the  third  '.arty.  The  hooks 
define  an  Equitable  Title  i-.s   one  which  a  Coui't  of  Equity  v/ill 
take  cosnizance  of  an  enforce.   As  iuiother  illustration  of 
Equitable  Title,  :'-ou  re\iember  that  in  your  study  of  mort£,;£es, 
that  upon  the  failure  cf  tJ:e  niortec.-2or  to  pt.y  the  d.ebt  at  the 
time  it  is  due  according  to  the  conditions  in  the  mortgage,  the 
property  became  a':'SOiute  in  the  mor  -^^b.^Q  *   That  was  so  even  if 
the  mort;5a,":;or  had  a  le^^c  1  excuse  for  failing  to  pay.  The  law 
court  T/ould  not  allow  him  any  relief,  T?ie  Court  of  equity  said 
it  is  only  ri.^ht  that  he  have  a  chance  to  make  the  payment  and 
redeem   is  property.  It  was  at  first  only  an  equitable  right 
but  after  r,  time  courts  of  equity  held  it  to  be  more  than  in 
equitable  right  bxit  an  squita^ble  title  vested  in  the  mortgagor 
and  his  heirs  after  condition  broken  until  it  was  cut  off  by 
foreclosure  of  the  mortgage.   This  title  was  called  the  Equity 
cf  Recemption, 

2nd.   The  second  division  of  the  subject  is  into  Equitable 
Title,  equity  of  re^  emption  as  t^n   exs-nple  of  equitable 
title . 

s  soon  as  we  have  finished  the  subject  of  Equitable 
Title  we  v/ill  take  up  the  subject  of  Equitable  rights.  I  want 
to  make  the  distinction  clear  between  Equitable  Title  and 
Equitable  Eights.  Equitable  Title  is  one  of  which  a  Court  of 
Equity  c  lone  will  take  cognizance  tnd   protect.  An   Equitable 
Eight  is  a  right  in  a  Court  of  Equity  to  some  one  of  the 
Equitable  Remedies,   Eor  exajnple,  I  buy  a  piece  of  proert,^ 
from  a  certain  party  anc  v-e  both  suppose  that  -  certain  descript- 
ion thpt  v;e  have  agreed  upon  will  include  the  property  that  I 
hi.ve  purchased.  As  a  matter  of  fact  the  description  includes 
much  more  property  than  what  I  have  purcha.sed,   '-o  upon  the 
face  of  t^-e  deed  I  am  tlie  ovmer   of  more  property  than  in  equity 
and  good  confcience  I  am  entitled  to  own.  There  is  a  mutual 
rairtake  between  the  parties.  The  party  who  would  lose  if  the 
deed  was  alo'ved  to  stand  as  it  is  may  go  into  a  court  of  equity 
and  a.sk  that  the  aeed  be  reformed  so  that  it  will  represent 
exactly  the  agreement  of  the  parties.  This  is  an  equitable 
right  to  v/hich  he  is  entitled.   It  is  called  the  Remedy  of 
R]']  'ORI!  TIOIT. 

Eere  is  another  illustration.  A  Young  man  just  starting 
into  life  enteres  into  c  •*  a4:reerTieut  with  a  relative  \vho  is  aged 
and  infinn,  by  which  tiie  ,  oung  man  agrees  to  take  charge  of  the 
pro-^'erty  and  business  of  the  old  man  and  turn  the  profits  over 
to  him,  except  a  certain  amount  the  young  man  is  to  receive  out 
of  the  profits  for  himself,  to  do  t'  is  so  long  as  the  old  man 
shall  live  and  in  consideration  for  this  service  the  old  man 
agrees  to  will  him  all  his  realty  and  personalty  on  his  death. 
The  old  man  continued  to  live  some  twenty  years  after  the  mak- 
ing this  agreement  anc  the  young  maja  who  was  a  young  man  when 
he  started  in  became  a  middle  aged  man  and  during  all  these 
years  served  him  faithfully.  The  old  man  was  induced  by  other 


VI.  EOUITY  JTOISPRUT^IIICE,  JP.  15 

relatives  v/ho  conciuded  it  v;-- s  not  fair  that  f-e  yourit^  man 
should  get  all  this  property,  to  c.ivio.e  wp   his  pro:.rrty  c'jnon^ 
them,  T}ie  young  man  u])on  the  death  of  the  ^.ged  relr.tive  filed  a 
hill  in  equity  ci.sking  that  these  various  conveyances  be  set 
aside  that  the  old  man  was  incompetent  when  he  mace  them  and 
if  not  incompetent  that  the  c.^cintees   took  them  with  full  giotice 
of  thn  contract  relatioii  exist  in';  hetween  the  old  man  and  the 
young  man  and  therefore  held  the  projierty  subject  to  eny   equit- 
ies "betv/een  the  two.  And  asked  f^e  court  to  decree  tha.t  the 
young  man  had  an  equitable  lien  on  the  property.  There  had  been 
prepared  a  -./ill  conveying  this  prop  r+y  to  the  young  man  but 
.;  t  the  instigation  of  the  other  relatives  the  old  man  had  des- 
troyed it.  The  position  was  taken  that  the  destruction  of  a 
will  by  cin  incompetent  parson  is  not  ■  revocation  or  destruction 
of  a  will  rt  all.  A  copy  of  the  old  will  was  found  and  it  v/;  s 
decreed  by  the  court  t  at  it  be  enforced.  The  equitable  right 
was  the  right  to  go  into  court  and  enforce  the  equitable  lien 
i!pon  the  property. 

VTaenever  prooerty  is  sold  and  no  security  is  taken  for 
the  payment  of  the  purchase  price,  f  lien  exists  in  favor  of 
the  vendor  for  the  unpaid  purchase  price.  This  is  knovm  as  the 
'^M.  OR'S  LIEl-T. 

ord.  The  t'  ird  division  of  this  subject  is  t^OUITASLE 
RIGHTS.   As  exan^les  of  these  rights,  RIQIIT  05^  RP, '^OPJviATION. 
and  right  TO  ENEOROE  EQUITABLE  LIEK.  An  Equitable  right  is 
a  right  tc  some  one  of  the  Equitable  Remedies. 

The  last  division  is  fiat  of  Equitable  Remedies. 
I  will  give  you  a  few  exampl'-s  of  equitable  remedies  so  you  v/ill 
gain  on   icea  of  what  v;e  mea.n  by  theno 

The  fi'-st  remedy  is  that  of  Specific  Performance.  The 
remedy  which  compels  a  party  who  has  enter-^d  into  a  contract 
to  fulfill  the  contract  according  to  its  terms.  It  is  a  remedy 
that  the  equity  courts  give  only  through  their  discretion.  If 
there  is  a  complete  remedy  ct  law  then  tMs  remedy  v;ill  be 
tenied.  But  if  you  make  out  a  proper  case  it  is  the  duty  of  the 
court  to  enforce  a  specific  performance  of  the  contract.  The 
cou -t  will  usually  do  so  v/here  the  subject  matter  of  the  contract 
is  land.  The  theory  being  that  when  a  man  contract  for  a  cert- 
ain piece  of  land  he  w  nts  tha.t  particular  piece  of  land  and 
not  because  he  wants  dam.ages.  On  the  other  hand  it  is  very  rare 
for  an  equity  court  to  grant  a  specific  performance  of  a  contract 
where  the  subject  matter  is  personalty.   It  goes  on  the  theory 
that  personal  pro  erty  can  be  duplicated,  while  there  no  two 
pieces  of  real  property  alike. 

4th.  The  fourth  division  of  the  subject  is  EQUIT/3LE 
PjaiEDIES.   The  principal  Equitable  remedies  are  the  follow-^ 
Ing; 

1st:  Specific  Performance,  3y  this  remedy  the  court  compels 
a  party  to  do  what  he  has  agreed  to  do  and  the  remedy  will 
be  granted  so  long  as  there  is  no  remedy  which  is  a^: equate 
at  law.  It  is  not  generally  considered  adequate  by  the 
courts  where  the  subject  matter  is  realty. 
Snd,  irJUNQ*riON. 


VI.  EQUITY  JUE I SPRU  EITCE.  JR.  26. 

The  Frit  of  Injunction  is  one  of  the  feiost  important 
of  the  Equitatle  Remedies.  It  is  a  remedy  that  is  very  fre- 
quently >-esorted  to.  In  almost  all  equity  cases  where  t  party 
see]:s  relief  he  is  apt  during  some  part  of  the  case  to  desire 
the  restrainin,;-  influence  of  the  Court.  The  T'rit  of  Injunction 
is  very  extensively  used  of  late  along  nev/  lines  in  connection 
v;ith  the  labor  troubles.  Thc.t  "s  an  illustration  of  the  general 
state  that  equity  v;ill  extend  its  principles  to  meet  new  relat- 
ions and  nev;   conditions. 

An  Ij^tjuijcTIOIT  may  be  defined  as  a  judicial  process 
issuing  out  of  a  court  of  equity  by  v.'hich  ...  party  is  res- 
trained from  doing  a  particular  thing  or  is  coi-imanded  to 
do  some  particular  thin;;. 

Injunction  are  divided  into  two  kinds,   ROHIEITORY 
INJTOTCTIONS  and  T-.IAI^^JATORY  INJUITOTIONS. 

oOo Oct.  10  1902. 


VII.  ■QUITY  JUBISPRm^~?TCE.    JR.  37. 

T"GTUI?j;     VII. 

—  oQo  — 

In  my   Ir.st  Lecture  i  v;i',s  s  eakinr  t-"bouc  VciUit;.lole 
remedies  i:rid  h£i,d  S''.'^l:en  aoout  the  principal  Icinr.s  of  equita'jle 
Remecies.  I  desire  to  £;ive   ou  an  outline  of  the  field  of  this 
subject,  I  ha.d  sug::^ested  some  of  the  principal  equitable  re- 
medies and  had  defined  Inji;.nction  I  believe.  Injunction  is  a 
writ  that  can  only  be  issued  out  of  a  court  of  equity  or  a 
Court  hE'.ving  Equity  Jurisdiction.  It  is  a  T/rit  that  is  prohibi- 
tive in  its  nature,  a  writ  that  prohibits  e    person  from  doing 
a  particular  thing.  It  ms.y  be  preliminary  and  issue  '^-pon  the 
filing  of  the  bill  for  the  keeping  of  the  subject  matter  of 
the  suit  in  statu  quo  or  may  be  ,,iven  as  a  final  remedy  in  the 
form  of  a.  decree.  In  either  cr-se  it  mur.-t  be  observed  s/aa.   obeyed 
by  the  defendant  and  is  a  very   e.T'Ctive  remedy.  It  is  called 
the  stron^  arm  of  Vquity.  It  may  be  ;_:ranted  upon  the  pleadings 
as  a  preliminary  injunction  or  upon  the  hearing;  of  the  case 
upon  both  the  pleadings  and  fact  in  the  form  of  a  final  decree. 
The  injunction  is  frequently  used  for  the  purpose  of  restraining 
an  action  in  the  Ipw  courts  '.-here  it  is  equitable  and  just  that 
the  decision  should  be  mace  upon  equitable  grounds.   Sup'pose  a 
mtm  is  in  possession  of  a  piece  of  realty  under  a  contract  of 
purchase  and  the  venc^or  has  the  le<jal  title,  the  only  title  the 
court  of  lav;  will  reco,_,nise,  the  vendee  has  possession  simply 
under  an  cigreement  on  the  pert  of  the  vendor  to  convey,  the 
vendor  brin^^s  an  action  of  7i]ject:nent  against  him  on  the  law  sic 
of  the  court,  the  vendee  has  no  possible  defense  because  the 
vendor  has  the  only  title  that  o  "court  of  law  -ill  recognize, 
that  is  the  legal  title,  and  the  vendee  has  merely  an  equitable 
title,  ho  must  go  into  a  court  of  equity  a.nd  pray  for  an  in- 
junction restraining  the  action  on  the  law  sice  of  the  court 
and  ask  that  the  case  be  decided  by  a  court  of  equity.  If  :'ou 
are  practicing  :.n   a  common  If-r  sta.te  v/here  law  a.nd  equity  are 
enforced  by  separate  anci  distinct  tribimals  this  v/ill  be  necessary, 
but  if  you  a.re  practicing  in  ;   ode  State  this  will  not  be  nec- 
essary because  the  sajne  court  will  decide  the  case  u.  on  equita.ble 
principles  if  it  sh.ould  be  so  decided.  The  injunction  is  also 
f-equently  used  to  nrevent  the  invasion  of  private  l.?gal  rights, 
Su^-oose  a  man  is  the  owner  of  lana  situate  upon  i.   running  streajn, 
he  is  t}ie  riparian  n-oprietor  and  he  uses  the  streain  for  c;omestic 
purposes,  an^  some  one  who  is  the  ovmer  of  the  land  above  him 
on  tlie  sa:ne  strea2Ti  begins  to  errect  a  dye  house,  the  refuse  of 
which  will  discolor  the  v/ater  e:.  a   make  it  unfit  for  use,  of 
course  he  can  wait  until  the  dajnage  hj'S  been  c  cne  anc  'iher.   sue 
for  dajaa^es  and  sue  hi:n  every  day  for  the  damage  done  but  the 
r-rne''y  vrould  hardly  be  adequate  anc^  a  multiplicity  of  suits 
would  result  v?hich  the  lav/  s.bhors,  the  party  must  go  into  a 
court  of  equity  a  d  a  ply  for  an  injunction,  he  may  apply  for 
an  i  "junction  restra.ining  him  from  the  further  use  of  the 
stream  after  the  buil: ing  has  been  errected  or  a  "ly  for  an  in- 


VII.  J^QUIJY  JIIRISPHII  J^IICI.\  ri^. 

junction  even  before  the  6ye   house  is  errected  if  he  can  shov/ 
to  the  coixrt  of  equity  thr.t  irreparable  injury  "vvill  follov/  its 
errection.   The  injunction  in  no  ern  times  is  v  ry  exiensivoly 
used  i;i  connection   ith  labor  troubles.  That  is  an  illustration 
of  the  [;.ner&l   statement  that  equity  ".'ill  eXi-eno.  its  principles 
to  m^pt  nevT  relations  and  ne%'   conditions.  Tliat  equity  cm   alv/cys 
adapt  it  processes  to  th-  c'lanjinpj  conditions  of  affairs.  In- 
junctions are  of  tv/o  kinds,  ^ROT^I^tlTOPY  I]:T.TUl.rCTIO:TSanc:  ^.Ainj/TORY 
INJlv'CTIOI-ir ,   The  mandatory  injunction  ;,  s  the  name  implies 
commands  som-ethint-,  to  be  done,  ant-  the  prohibitory  injunction 
as  the  nfune  implies  prohibits  the  doin,,  of  a  particular  thing. 
The  \i'rit  of  mandatory  injunction  has  been  denied  in  some  juris- 
dictions, but  usually  the  ri^ht  to  a  mandrtory  injunction  is 
recotrnized  and  mry  be  issued  upon  a  proper  showinc  before  the 
court,  usually  it  is  not  issued  as  a  preliminary/  remedy  only  as 
i:  final  decree  and  as  a  result  of  the  testimony  that  hc..s  been 
taken  in  the  case.  To  illustrate  the  use  of  the  I  Mandatory  Injun- 
ction. /  mill  ovm.^r  h-  s  the  right  to  flov/  a  certain  cjnount  or 
certain  tract  of  land  v/ith  bf-ck  water  fr'om  his  mill  daiii,  he 
desires  to  increase  the  pc.ver  of  his  mill,  so  he  puts  flash 
bo;  rds  on  the  to-  of  the  dam  and  the  back  v/ater  is  pushed  on 
to  the  land  farther  then  the  mill  owner  has  a  ri^ht,  the  ov/ner 
of  the  lo-nc-  may  sue  for  damages,  but  he  coes  not  want  damages, 
he  wants  the  l&,nc  for  agricultural  pruposes  and  he  asks  the 
court  of  equity  to  order  the  def env  ant  mill  owner  to  remove  the 
flcSh  boards  from  the  top  of  the  dam,  in  this  case  the  court 
in  its  final  decree  not  only  order  the  defendant  to  remove  the 
boards  by  a  mandatory  iiijunction  but  accompanied  its  decree 
Vkdth  a  yrohib.tory  injunction  r.rohibitin^  .he  defendant  from 
put'oin,'  the  boards  back  after  they  were  removed. 

Another  remed.y  you  will  have  frequent  occasion  to  use 
is  the  remedy  of  K^": .OP.k'/TION,  ^■;]^ich  is  the  a'/'propriate  remedy 
where  through  mutual  mistake  of  the  parties  or  the  mistake  of 
one  party  s.nc   fraud  of  the  other  party,  the  contract  entered 
into  is  not  the  real  contract  inten,  ed.   If  the  mistake  is  a 
mistake  of  one  party  only  you  cannot  hcive  the  remedy  of  ro  orm- 
ation.  But  where  there  is  mutual  mistake  or  'mistake  of  one  par-ty 
brou£:h  about  b3/  fraud  of  the  other  then  you  can  go  into  a 
court  of  equity  tnd  ask  for  a  decree  reforming  the  controct  or 
instrument  so  it  will  conform  to  the  agreement  of  the  parties. 
There  is  one  thin,_,  I  wish  -'ou  would  keep  in  mind  in  connection 
with  an  a-plic;  tion  for  a  d'ecree  of  this  kind,  you  shoul  never 
ask  the  court  for  this  kind  of  remedy  or  relief  unless  you  are 
prepared  to  sustain  your  bill  by  the  clearest  possible  evidence 
because  the  romecy  chan^,es  the  written  agreement  bet'';-een  the 
parties  and  a  court  always  hesitates  to  change  B.n   agreement  in 
writing  between  the  parties  and  will  do  so  wi'iLi't*  only  v/here  there 
is  practicall:'  no  doubt  that  there  has  been  a  m.utual  mistake 
between  the  parties  or  mistake  of  one  party  induced  by  fraud  of 
t"e  other. 

Another  remediy  is  that  of  cancellation  or  recission, 
that  is  v;here  the  minds  of  the  parties  have  failed  to  meet 
in  a  certain  transaction  through  mistake  of  one  partj^-  or  mutual 


VII.  •lOUiTY  ji^^irpRm-T;:NC;^,.  Jl\,  ;.9. 

mistake   aiic    the    rejviec'.y  at    le.w  upon   the   instrument    is   not    full 
anc".   cu' equate.    T'Jiat   remeey   is   n^ver  ,, ranted  i/here   the  party 
S'ekin,,   relief  \70uld  hcve        full   .-.nd   adequrte    defense    in     n 
^ci. ion   L't    Ic.xf.    It    is  never  ::ranted  where   the   defense    is   apparent 
upon   the   face    of   tha    instrument. 

There    are    other   rem  dies   thr-t   e.rs   f  reqi;  ^nt  13'  n>-.  e 
use    of,    one    of    :""'.c   'lost      I'quent   remedies    in  mocarn   times    is 
that  of  R' 'C: ':I''.^'KS''I'^.\     '    ^^reat    ceal   of   the    r;  ilv;r-y  hu.siness    of 
•^■•le   country   is    "one    throur^h  the    instrumentality   of  r"!ceiver- 
ships.   A  court    of   equity  tevlces   u;"    i    "banhrupt    corporation  and 
throup;h   a   receiver   runs   the  business   until   it    is  put    on   its 
feet   again.    It    is   ;•    very   important   branch,    pirticv.l;  rly   <.  s 
connectod  with  cor'por.-tion    law. 

/nother  remedy   is   the   remedy   of  ITU  7,T:^,AT ,      This   is 
r,   writ   to  present   a  p    rty   from  leaving;    the   jurisoiction   of  a 
court   v/here    the    court    desir's   the   party  to    remain   in  the 
jurisc  iction  to   ansv/er  the  process   of   the   court,  ''h.en  e    writ   of 
ne   exeat    is   issued   against    a   P'-rty   about    to    leave    th ;   juriscict- 
ion  he   if   taken  into   custody  unless  he   gives   the    security 
ordered  by  tho   court.      A  bond    is   usuallj''   required  that   he  may 
give   and    thereby  be    reler.sec   from  castody. 

These    are   the  princir;r-l   remedies    in  v.   court    of   equity 
but    let   me   say  by  way   of  conclusion  that   the    court    of   diuity  ha,s 
the  pover  to   devise   any  new  remedy  that   me.y  b     necessary  for 
the  purpose    of  working   out   equity   and  justice  between  the  parties. 

The    injunction  may  be    either   in  the   '^ROIIiriTORY 
or  "/^H/V'TORY  form.    The      rohibitory   injunction  forbids   a 
party   from  doing   a  particulc  r  thing,    the  mandatory   injunct- 
ion  commands   the  party  to   do    'omething.   /./lother   rei'.edy   is 
R'^VORIL' TIOIT  \:y  whic}i   an   in   trumeat   '.'hich   loes   not    re    resent 
the   contrt-.ct    of   the  parties  m.a:'  be   cha,nged  provided  the 
error  hi  v   come   from     utual  mistake    or  mistake    of   one  pa.rty 
accompaiiied  by  fraud   of  the   other.   Another  remedy   is  the 
remedy   of     P']CinP;I01\-   by     hich  an   irre^.ular   contract   under 
prop    r   circumsti  noes  ma;''  b-    cancelled  also   the   remedy   of 
K'X:^I\^R8HI^   and    the  writ    of  I^    :r~^/T. 

I   have    alrea-  y   given  you  i    general   outline    of 
the   field   of  the    subject,    a.s  we    sha,ll   take    it   up, 
1.    General  Ilaxims   of  Equity. 
...   rquitab.'.e   Title, 

3,  ^iquica.ble   ?d,:hts   or   '.>rounds    of  Re.ief. 

4,  "(-Liitable   Remedies. 

T/is  mat.er   of  classification   is    of    some    importance, 
Por   CI   s?ific^.:ion   of  th""    subject    see: 

Pomeroy's  '"quity  Vol,    1,    118  to   1:6, 
!^ispham's   "^'rinci  ■"  les   of  ^''quity,    chap   2, 
The    classification   I   have   given  you   is   the    one   ;  .-.opted  by 
Pispham  and    with   some   changes   a.  O'^ted  by  Pomeroy.      If  you 
look  through  the    older  books   you  will   find  the    ar-an^ement 
different.    Story   in  his   vrork  divides   the   field   of   equity 
into    f-iat   part   which  equity  has   exclusive   jurisdiction;    that 
r;art   which  equity  has   concurr'nt    juriS'  icticn;    and    that 
part    ■■.hic]i  equity  has   c^uxiliary   jurisdiction.    The    is   the 
division   of  Adajns   joic   Snell  v:aC,   all  the   older  writers. 


VII.  "OUITY  JUP.IS"^ilU-  "^liO^.  .IE.  oO. 

■Tiere  the  courts  of  equity  v/ere  distinct  tribunals  tliis 
aue.-tion  of  jurisc'iction  rr£  v.'c.s  one  of  great  importance. 
Put  in  this  country  :aany  of  the  states  have  a'bolish'^r'  thif^ 
distinction  'between   le^^  1  t  nd  equitable  remedies. 
V'e  will  nov;  take  up  the  maxims  of  ?^quity. 

G-'-^l'TTRAI.  'I/JCIT''S  OP  T^OUITY. 
I  have  already  expalined  \7hc>t  is  meant  by  t.lie  term  or  ex- 
pression general  m;  xims  of  equity  and  I  will  nov/  enumera,te 
them  v/'ith  suc'i.  explanations  and  citations  as   I  may  think 
necessary  for  your  understanding  them, 

A  generctl  r"'axim  is  the  statement  of  a  f.  miliar 
truth  or  fundamental  principle  that  applies  to  the  Y/hole 
systeni  of  equity. 

1.  '"Equity  will  not  by  reason  of  a  merely  technical  defect 
suffer  a  wrong  to  be  v/ithout  a  remedy. 

■Tow  this  maxim  is  sometimes  couched  in  cifiersn: 
language.  r.isT!ham  says  that  equity  vill  not  suffer  e.    right  to 
be  wit  out  i    rerv-edy.    Some  other  writers  i  c'opt  t  is  brief  form, 
v/hereever  there  is  i\   ri^ht  there  is  c    remedy.  In  the  older  works 
you  will  find  the  l<.tin  form  v/hich  is  gen":rally  translated 
literally  v.^hereever  there  is  a  right  there  is  a  r.?medy.   The 
principle  embodied  in  this  mtxin  is  the  very  basis  of  equity 
jurisc-iction.  One  of  the  principle  reasons  for  the  existence  of 
the  court  of  equity  is  to  be  found  in  the  fact  that  the  coiirt 
of  equity  has  alv/j'.ys  sou.^.ht  to  supplement  the  remedies  of  the 
law  courts  so  no  pe-son  should  b3  without  relief  at  the  h:  nds  of 
the  courts.  It  is  elemental  and  lie;  s  ;  t  the  brsis  of  the  whole 
equity  cystem. 

The  pr.liiciple  of  this  ni- xim  lies  at  the  basis  of  the 
equity  system  for  the  end  ana  aim  of  equity  court  is  to 
furnish  remedi^^s  for  wrongs  that  the  coroinon  law  either  fails 
to  redress  at  all  or  redress.-^  s  but  inacequr.  tely. 

Southern  Calif oi-nia  RY.  Co.  v.  Rutherford  et  al. 

(6^  i'ederal  Re-:orter  795) 
Illustrative  cases,  page  3. 

The  decision  in  the  case  of  Sout  em   California  P.Y. 
To.  V.  Rutherford  Wc^.s  ,:,iven  in  1694,  in  v/hich  v:n   injunction 
was  issued  in  connection  v;ith  labor  difficulties  aj^.d  in 
which  the  decree  oi  the  court  was  some" 'hat  out  of  the  usual 
order  mC   the  d'cree  v/as  based  u  on  the  princi}'le  of  tiiis 
maxim.  Certain  railro. C    employees  refused  to  haul  trains 
'tht-t  h;  c  attcched  PulMan  cars.  The  Southern  California 
Ry.  ''■0,   wrs  under  contract  v/ith  t]ie  Pullman  com: 'any  to 
hr  ul  its  cars  from  the  v;est  to  the  east  and  if  these  ci  rs 
were  not  hauled  :here  would  be  a  breach  of  thD  contract. 
The  men  insisted  in  re:-:aininr  in  tJie  employment  of  the 
company  although  they  refused  to  have  rnything  to  do  v;ith 
trains  ht-ving  Pullman  cars  attached.   The  court  said  t}iat 
the  position  of  the  men  was  unjust  and  inequi-cable  and 
that  the  compcny  had  no  adequ.-te  remedy  i-t  law.  The  compmy 
did  not  w  nt    dcunrges  it  Twnted  these  cars  hauled.  The 
court  said: "It  is  manifest -that  for  this  state  of  affairs 


VII.  '^QUIiY   ji"  IS  ■RirjTj.TCE.JR.  31. 

the    la\;--neither  civil   or   criminal--   aiiords   in  aCequrte 
remedy.   I'Ut    the   prouc^   boj  st    of   equity   is    "IPoi   jus,    ibi 
remei' iun. "    It    is   the  maxi:Ti  ;\hicli   forms   the    root    of   all 
equitable    decisions.    '  Iny    should   not   men  '.vho   remain   in  the 
emrloyment    of   another  perform  the   duties   they  contract    anc" 
en:.:a:;e   to   perform?    It    is   c-rtainl;^  jusv   and   ri^ht    thc^t 
ti'^.ey    should    co    so,    or   else    -.uit    t'le    emploj-Tnent .    /nd  rrhere 
the    direct    result    of    such  refusal  v;orks    irreparable   d.  ma^e 
to   the   employer,    an     at   the    srjne   time    interferes   v/i':h  the 
trarism.ission   of   the  mc.il  en<     v.'ith  commerence   between  the 
states,    equity,    I   thinl:,    •■ill   com.el   then  to  pe  'form  the 
duties   pertaininti   to   the    employment    so    long  &s   they   con- 
tinue   in   it.    If   I   unla'.;fuily   obstruct   by  a   da.i  a   streaiv;  of 
flov/ing   -.ater,    .:q\.iity,    at   the    suit    of   the   party   injured  -rill 
compel  m.e  b^^'   injunction,    raanc'atory   in   character  to    remove 
tho    dam,    a:u    prohibitory   in  char;.cter,    from  further   inter- 
f   rin^,  y.'lVr.  the   flow   of   the    stream;    and   if   I   unlawfully 
err   ct    a   \7a,ll   shu:tinc    out    the    li^ht    from  another,    equity 
vvill   com'-'el  ."-le    to  tear   it    dovm,    an.,    to   re    rain  from,  further 
interfering  v/ith  the    oth'r's    ri(;hts.    It    is    r.rue    o;-.:  t    such 
caces      re   .":ot   precisely   like   zhe   present    one,    yet    the   pri- 
inciple   upo.-'.   v.h.ich  th":    court   proceeds    in   such  cases   is   not 
substcmtiaily   c.ifferent.   And   if   it   be    said   that    there    is 
no   exact   precedent    for  the   a'varcing   of   an    ir.j unction   in 
t\'e  present    ccse,    I    respond   in   the    lani^ua^e    of   the    court 
in  the   case   Toledo,    etc.,    Py.    Co.    v.    "  ennsylvania,   "^o.    54 
'i^cd.    751;    '^-'■ery   just    order   or   rule   knov.Ti   to   equity   courts 
••;:  s  born   of   some   emert:-''ncy ,    to  meet    some   nev.'  condition,    and 
v;as   therefore    in   its    time   'vitbout   precedent.    If  based   on 
sound   principle   and   beneficient    results   follow  their  en- 
forcement,   aifordini-;  necessary   relief   to    the    one   party  v/ith- 
out    imposinL    ille:;al  burdens    on   the    or,her,    new  remedies 
end  unprecedented   orders   are   not    unwelcome    rids   to   the 
chancellor  to   meet    the   constant   and   varying   demj-.nds   for 
equita"-'le   relief". 

I   v.'ish  "'ou  to    study  tliis   case   carefully  for  the 
decision   of    ",h"    court    is  bt-sod  '-.pon   this   first   maxim, 
'■"liile    it    is   true    that   the   principle    of  tb.is 
mxjcim   is   the  basis    of   equity  jurisdiction   it    is   also   true 
thtt    it   must   be   applied  v/ith  certain   limit;  tions.    In  the 
first   pljce   we    sliould   bes,r   in  mine     .j^at   there   are   mrny   real 
wron,.;s   that    ca;inot   be    remedied  either    in   law  or   equity.    In 
order  that    a  wron,^   can  be    righted   in  equity   it  must   be    one 
that    .     court    of   equity  can   t^ke    cognizance.   As    said  by 
¥.r ,    Jii.stice   "iunt :    Ic    cannot    exercise   jurisdiction   or  assume 
control   over  thrt    lar^e    class    of    obli,^ations   called   im- 
perfect   obli   a,oions,    restin^^   upon   conscience   and  moral  duty 
only,    unconnected  witbi   le.__.al    obligations. 

This  miixim  while   very   g  :neral  in  a;  plication  must   yet 
be  used  within  certain   limits:    ITirst,    if   the  wrong   is   merely 
a  m.oral   one    it   will  not   be  k  remedied  by  a   court    of   equity   if^mply 
on  the   ground   of   its  being   a  moral   one.    In  order   that  the    court 
of   equity  v/ill  .-..rant    relief   the  v;rong  must   be   one    of  t;-'iich 


VTI.  -QUITY  JI!?irPEU".TE.j:-..  3  .. 

juc'icial  cognizpnce  is  taken, 

Rees   V,    ''-ity   of  \'Vtertovm. 

(19  \Vallr?ce    1.1) 
Illustrative   cpses      ^;'s>    5, 
Th.3"   ^here   are   7.Tonri;s   the^t    rre  more   a;^)rai'ent    t''an   rerl, 
wrongs   that    are   wrongs   within   the   feelings    of   the   viarties    simply, 
Equity   v/ill  not    interfere    in   these    cases    or  af-'ord   relief, 

f^'Uity   does  not    interfer  to   remedy   c'.ny  v/ronp;  T/here 
the    ri^ht    anc",    remedy   falls   entirely  v/ithin   the   (  omain   of   the    lav;, 
as  usuallj'-   a^'plied,    equity  v.dll  not    afford   relief  where   there 
is   full,    adequate   anr    complete    remedy   at    la,\;.    The    remedy    at    law 
nust   be   T^'lain,    i.-ust   he   a   equate   an      conrlete   and    if  any   of  these 
elements   are    Ir-ckin^;   equitj/-  jurir,   iction  ^'ill  a-tti  ch, 
2.   Equity  will  never   jrc.nt    relief   v/here   there    is   a   full,    ox  equate 
and   complete    r'-^medy   ft    lav/, 

Teft    V,    ntewart,    31  !:ich  357. 
Illustrativo    ca-ses  J,S4, 
?ut    if   eith3r   of  these    elements   he    la,clcing(I    refer 
to  the   acequate,    full   anc    co^vnlete    rem  dy  at    I'-w)    the   jurisdict- 
ion  of   equity  will  attach. 

Fc^tson  vs.    Sutherland.    5  '"allace    74, 
Illustrative   cases,    p    fe    732. 
I   \7ish  you  to  prepare   thJ.s    case   for   recitation. 

oOo Oct,    17    I90;j, 


VIII.  EQUITY  JURI -'i^RTH^-VOT^  .  JV  .  33 

I^C  Trrr  'III. 

In  rny   lo, st    1   cture    I   v/as   talki;i,.,   about    •,lie   first 
general  mtixim   of  equity,      ■  uity  vdll   not   by   reason   of    -    nere 
techinical   defect    suffer  i.   v/ron^    to   be   v.'i-,'-out    a   rernecy.      I   v;as 
discuLJsin^..   the    limita-cions   uyion   the   ar.-. licet io'i    of   that   v-rinciplft 
or  general  niojcim.    One   of   -^.he    li-'itations    is   that    equity  -.vill 
never  gr- nt   reli-;f  where    there    is   a  full,    aclequcite   and"  complete 
remedy  at    law.    If   any   of   these    elements   are    laclcini,;  then   the 
equitable   remedy   will  be      ranted.    There    is   another  princi,.le   I 
should   discuss   in  thin   connection,    as    it    is    in  a  v;ay  a  modific- 
ation  of   the   a   ^'lication   of   this   maxim.    LTamely  v/hen  an  iniquity 
Court   gets  jurisdiction  for  any  purpose   of   a    subject    it   alv/ays 
retains   jurisc^  iction  until   complete   justice    is   done  betx^een  the 
T'arties,   Even   if  by    so   doinr    the    court    of   equity  pasS'^s   unon 
questions   that    ordinarily  belono;   to   a   court    of   law. 

(7  ictation) 
/nother  princi    le   that   may   be   discu'^sed   in  this 
connection   is   that    equity   v/hen  it   has    once   taken  jurisdiction 
of   ■■:    subject   ^.vill   r.nain   the  ma:ter  until  full   ind   complete 
justice   has   been   cone   bet-.ien   the   -parties   even  though  by 
so   doing   the   court   passes   u-on   quescions   thrt    oro.inarily 
belong  to   a    court    of   la,w. 

For   example    of   this   priiici    le ,    su-r>ose  :/ou  a-    ly  to   a 
court    of   equity  for  an   injunction   to    restrain  "roceediiigs    in 
a  court    of   lav  upon   the    ground  that  vou  have    an  equitable   defense 
to   the   action   that   has  been  brought   against   you   on   the   lav;   side 
of   the    court.    How  the  proceedin  ,s   are    restrained   anc    the   v/hole 
matter   transferred   to   the   equity   sice    of   "he    court.   The    equity 
court   has   now  jurisdiction  of   the    subject  matter  and  from  a 
consideration   of   the  whole   ma   ter   it    ap;.  ear  that    "ou  are    entitled 
to  a  money  judgment    the    equity   court   may  grant    it,    it    is    sustain- 
ed by   authority  that   vrhere   a    court    of   equity  acquires   jurisdict- 
ion for   .\rantinc^   an   irgunction   it  may  retain  jurist  iction   of 
the  case   and   give    relief   in  favor   of   either   of    the  parties   that 
equity   ;  ne   justice    :emana.    It    is   not   part    of   the  functions   of 
the   court    of   equity   ordinarily  to   give    dama.ges  that   are  merely 
compensatory,   A  party   desiring   dahia'.es   it    is  his   auty  to   go    on 
th'^   law  siae    of   the,    cou.^'t    ,  r.r'    sti  rt   his   action  but   there   are 
certain  cases  where    a  court    o:.'   equity  ta]cin_   jurisdiction  for 
some    other  purpose   may   retain   it    anc    give   damages,      ''u~r;ose   for 
example,    the  purchaser   of  a  piece    of  realty  files   his  bill   in 
equity   for   specific   performance,    at    the   time   the  bill  is   filed 
it    is  possible   for    ..he    venaor  to    s    ecifically  perform  his   contract, 
he   has   the    le-,al   title   to   tlie  prof^erty  and  may  be   com  oiled  to 
convey  to  the   vendee,    but     -enain^   the   contraversy  he   disposes   of 
that   property    ajic   disposes    of   it    in   such  a  way   that  the   party 
purchasing   is   an   innocent   purchaser,    -nd   for   value   anc    without 
notice    of   the   proceedings (    that    could   not   be    done   in   some    states 
••here   the   filing   of   the  bill   or   starting   of   the    suit    is    con- 
sidered constructive   notice   to   all  parties    of   t]ie   control  which 
the   court    exercises    over  the    subject   matter   or  property   involved 
in    rhe    suit,    this   constructive   notice    is    called*  lis  peneens) 
but    suppose   for   the    sake    of   the   illustration  that   the   third 


r  IWc 

ys 

the 

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f  0. 

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for 

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for 

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iciov 

^'.nc 

for 

the 

■.'Til.  :^oriTY  ju:^if'-^:-ir.^j:"Ci:.  jr.  34. 

is   an   i.-inocpnt      urcliaser.    It    is    impossible   for   the    court    of 
equity  to    c'eoree    s  'ocific   performance   bacf-.use   it    is    impossible 
for   the   defendp;it   to    obey   the    order   of   th?   court   and  you   should 
rvne-nbir   that    a   co\irt    of   equity  v/ill  never  decree   that 

ncant    shall   do    scnr  ohiji-;;  v;i  ich   is    im   ossible    Tor  ]iiin  to 
un'- c  r  t/iose    cii'cumr  cances    instea      of  disnissin;_,   the   suit 

rec.son  thtt   the    cou  t   ca.nnot    ^'rfvnt   the    relief  orayed 
t'-e   bill   the   court   vill   rec-in  the    case    an-     (-iv.^    >.  tim,  ;„es 
breac'i   of   contrj;ct  .     '-henevor  the   vendee    in  a    contract 
sple    of    ve^j^lty  files  -is  bill   a  .t.mst   the  vendor   not 
at   the   time    of  t'ls  filin.;,   of   tjie  bill  that    it    is    impossible 
vendor   to  ^-^erform  the   contract, the    court   rill   retain 
jurisdiction   of    ':he   case    an.    ,:.,ive    com"  ensatory   damages.    The 
court   will  not   do    this    if   at   the    time    of   '.-.ho   filing   of   t-e 
bill  for   sjiecific  performance   the    vendee   uncerstood  that    it 
v/as    impossible   for   the   venc'or  to   perform, 

(Dictation) 
Illustrations   of   "he  pri}iciple   of   -.he   equity   court 
getting   jurisdiction  for  the   purpose   of    issuin.j   an  i-gunct- 
■  on  may  retain  juris    iction  until  full  anc    com"lete   justice 
hf:S  been  done  betv/een  the  parties, 

Cornelius   vs.   Torrel.    12  "'eiskell  Tein,    630, 
Russ   vs.   '•'are,    6  Pratt  on,    Virt^inia,    50. 
Com  "ensatory   c'cnrges   as   a  rule   vdll  not   be   clYen  by 
an   equity  court   but   r.;-.y jhc'/ever ,    v/here    the    court   has    ob- 
tain-c    jurisciction   of  th-^   case   and   it    is   equita1:le   and 
just   that    they   should  av/ard  dama.'es   as  where    in   a   suit   for 
specific   performance   the   vendor  has    so  placed  himself   thct 
he    crnnot  Tie:'"fonn,    the   vendee   not   knov;ino   at   the   time    of 
the   corjnencement    o-/   t    e    suit   thot    t    is  Y;as    so,    he    is    entitled 
to   damages. 

"arse   vs  Up'nendorf    11  Pj  ,je '  s   Chrncery  .jVl. 
r^tory's    ;^  ;aity  Juris";"iruc:ence  pir.    796 
The  maxim  does   not    a"     ly  vmere   a  ""^arty  has   been  guilty   of 
laches   or  has    in  i-ny  v;ay   destroyed   or  waived  his    right    to   an 
equitable    remedy.    For   one    of   the  maxims   that  we  will   study 
la.ter   is   that,    eqv.ity   aids   the   vigilant    and  not    the    one   who 
sliAKibers   upon  his   rijhts, 

(Dictation) 
This   "rj-cim  does   not    a'     ly  where   ;    p.  rty  has  been 
guilty   of    laches   or  jias   in   i-ny   ray  destroyed   or  v/aived  his 
ri  .ht    to   an   equitable    remedy. 

Pom^vroy's   /'quity.   Vo .    }.,    par.    124. 
A_nd   iu:~ther  the  luaxiij   co-'-s    'lOt    apply  where        party 
hiS    r-ou^ht    a   remedy   in  a   law  court   c-n      fc.iled  to    obtain   it. 
Equity  v/ill  not   ^,rant    relief   simply  because   a  man  has  been  beaten 
on  the    law  si.  e    of    '.he   court,    if   the    r-meay   is   pro"'erly  a   legal 
one.    If   the    remedy    is  properly  a    lega^l   one    and    the    court    has 
refuseci    to   g^ant    it   he   CGni"io"c   then  go    into    equity  and   get    relief. 
The    ca   e   I    callec    your   attention  to    in  ray   last    lecture    of 
Rees   V.    City   of  \Vatertovm(  19  Wallace    107)    is   a   good   illustration 
of  this  proposition. 


VIII.  ■r,nj:ir:'  j\j:  lrr^I:^I  -v'j:,  .tr.  55. 

The  ;':(:'.rties   in   th;  t    case   he.    Ci.":te:.r"itec-.  th'3   coll   c"^ion   o'    -cjxes 
throui.h  '■.c-..nf  arnuR   .;.  ^oceedini^,    •.hich  ■'■•^,5   f^e  -Toper      roce    i.i     to 
talce   un'.'er  the   lav;s    of   -^he    st.  te    of  ■'■.'i-.conrin.    The   -c.iletv   in 
their  efforts   in   this    'ir^ction    -■.id   •  ent    into   ;.  court    of   equity 
c-.nd   asked  for  c    f.ecrce    ..ut^\ori2i'r    the    lev:,'in,     of   the   tv^.   The 
court    said   thiat   r.  im.n  CD,::r.ot   hc.ve    relief    siiT.ly  becr-use   his 
l3..al   ror.ef-/  hi  s  ft.iled,    v;hen  the    re   ed.y  he   Si^''-s   is  Tni.rely  ? 
lec;al   rs -edy.    If   a  v.^rty  "by  mista]ce   ,-:ets    into   a   coi:.rt    of    Ir,"  and 
is   throvm   out   tecause  his   remedy   is   a   lec:al   one   thvn  he    can  ^:o 
into   a  cour't    of  equity  for   re    i.ef,    hut   not   v/here   his   case    is 
strictly  a.  le^jal   one    &.n     he  h;;  s  "been  "beaten   in  a   court    of   law. 

(T/ictation) 
The   ^  xim  does   not    aririly    ■■here    the    le   al   rer^edy  h;  s 
failed.    The   tot,  1  failure    of   the    ordinary   remedies   coes 
not   clothe   the   court    of  equity  hy  virtue    of   this  mi. xim 
'.■it'^    pov.'er  to    •:,rant    relief. 

Rees   V.    ""ity   of    -,  tertov/n(  19  ^-allace    107) 
Illustrative    cases   :';  ,,e    5. 
I   v,'ish  'ou  to  prepare    ':.his   case   for   reciJation 
and  e3:M.i.ination. 

There   is    mother   limitation  tot    is  nr.xim,    .'■ 
f'ourt    of   equity  v.'ill  .  ot    :;rant    relief  where    the   rj.iount    involved 
is   too    snail.   The   amount    involved  must   he    at    le?  st   the   amount 
fixed  hy   statute.    The   court    of   equity   '/ill  not    trotihle    itself 
'.vith  small   things.    The   amount    re;-,ulated  hy    stautes    i..  :;^ost 
cases    is    oni=:    '^.tindrec-    co.'lars,    T'lis    is   jurisc  ictional  and   must 
a;''.pear  upon  the   f.  ..e    of  the   pleadings,    r.pon   the   face    of   th.e  "bill 
that    the   amount    invo.ved   is   at    le.  st    the   amoiunt    fix'd  hy   statute 
as   the   lim.it    or  minim.vji':  of   the   jurisdiction  of   t.'ie   court.    It    is 
not   prop    r   to  wait   u:itil  you   ."lUt    in  your  proof  ":ut  mus      ;.      ear 
ii.   the   hill. 

(lactation) 
The  mexim  does   not   apy<l2^  where   th.e  amount    involv- 
ed  is    so    small  as   to  he    outside    of   the   jurisi'iction   of  the 
court.   This   is    a  matt:;?-   that   is   fixed  hy    nti^tute   ;  nC    is 
usually   fii'.ed  at   a  hu.idred  dollars, 
.id  "i'xim  is   as   follo'vs: 

.3.  r^ouiTY  'pouLO^"s  nr^ 

Tr.is  is  usual  c2i?.ssed 
anc  limited  i.:  its  a;  lication. 
ti'iat  equity  in  ohedience  to  the 
to  the  general  rules  tjic  policy 
applies  ■'.•ell    settled  principles 

in   the    common   lav:   or   statute    la'>/.    This  principle    is   illustrated 
in   th-    case    of  Dihrell  v.    Carlisle    (48  I'iss.    591)    The   court    in 
that    case    says: "The   first    question   involves   the    construction 
of   the    limitations    in   tl'-e   deed  creating   the   trust    estate.    It    is 
a  common  majcim  that   equity  follo\7s   the    lav/,   ''hiere   a   rule    of   the 
com?;ion   or   statute    le,vr   is   direct    and   governs   the   case  with  all 


I./.- 

'  • 

1 

as 

a  mrixim 

hut    it 

is  pt 

rtial 

In 

a   g^ 

-ino  r 

al  v-ay 

it  raa:> 

he    said 

pr. 

inci 

le 

of    *he 

r.iaxim 

conforms 

of 

the 

IcW 

c.nd  fo 

Hows 

and 

of 

the 

law 

,    wheth 

er  con 

tained 

VIII.  :"^UITY  .JV';IS?PTrvFl'nE.    -R..  35. 

its   circumstances    or   the  particular  point,    ;.   court   oi    equity 
is   as  much  "bounc    by   it   as   v.  court    of   lav/  and  can   ^.s    little  jii.sti- 
fy   <•    r;er)Firture   from   it.    '    cour't    of   equity   caniiot    c'^isrerjard   the 
cannons    of   descent.    In   general   in   courts    of   equity,    the   sajne 
construction   and   effect   are    :,iven  to  perfect   trust    estates  as 
are   ci'^'en  "by   courts    of   lav;  to   legal  estates.   The    incidents,    pro- 
perties  are    ohe    same.   The    srjne    restrictions   ar-   applied   as   to 
creating  estates   and  hov.nding  per^  etuities  and   ^^.iving  absolute 
dominion   over  property.   The    sane  modes    oi'   construing  the   lanjua^e 
and   limita\-,ions   of    the   trusts   t^re    n.  opted.    The   words"heirs   of 
Vab  body",    in  the    conveyance    of  a    le^-al  estate   are   v/ordr-    of 
limitrcion   of   the    estate   to  the   donee,    end  not  words   of    •-'urclii;. s  • 
for   the   heirs   o:    the  body.   These  vrorcs   create   an   c-state    in   fee 
tail,    v/hich,    by   our   statute,    is   converted   into   a.n  estate    in  fee 
sim^^le,    " 

(rictc'tion) 
This  maxim  is    limited   in    its   application  but    in  a 
general  way   it  may  be   said  that    equity   in   obe/-ience   to 
the  pric^ple   of  the  may-.im  conforms   to   the   general   rules  and 
policies    of   the   lav  i-nd   follov/s    an^    a'^j'jlies  '.veil   settled 
■"principles    of   law. 

Dibrell  v.    Carlisle(4&  ri'S.    691) 
Illustrative    c;  ses   pa^^e    9, 
Although  a  court    of   equity  reco;jnizes   the   general 
principles   and  well   sett  lee    rules    of  the    lav;  it   may  under   certain 
circumstances   "here   justice   ■  iid   equity  may   require   f.void  the 
strict   apjilico.tion   of    its  principles,    for  exr-Lraple,    under   the 
English  Ci-nnons    of   descent    the   estate   passes   to   the    eldest    son 
•..'hen  the   f-ther  dies    intestate,    ./ov    su"     ose   t^he   father  has  two 
sons   and   intenc's   to    convey/  bv   v;ill  part    of   the    real  estate   to 
his   youngest    son,    but   the    oldest    son   says   I   understana  perfectly 
well  your  desires,    you  do  not   ne-^C    -,0  raake   r   'vill  anc.  uoon  your 
death  I   v'ill   see   that    "."ou   intentions  are   carri   d    out   and   I   v;ill 
convey  the   property  which  3^ou  cesire    shall   ^-O   to  him  to  my 
younger  brother,   ]^ov.'  the   frther  relying  v.pon  his   elf  est    sons 
promise    coes  not   mr.l:e   aiiy  T;ill  but    dies    intesoate.    There    -./ould 
be  no    r  oubt  but   under  the    -^nglish  Cannons    of  c'escent   the  property 
would  pass   to   the   eldest    son   rni   he   -.-ould  te.ke   the    le_al   title. 
;"quit3'"   recOf^nises   tliat    the   legal   title  passes  to  him  by   cannons 
of   descent   anc    do      not   take   the  position  that    the  3/ounger  brother 
hfr'S   rny   legal   estate,    but    it   will  S8,y  that    an   injustice   he  s  been 
done  and    a    fraud  perpetrated  whic"     e!iuity   should   should   give 
relief.  We   cannot    say  that   the   :-ounger  brother  he  s'the    legal 
title   but   we   can   say   that    the    .^Ider  brother  has   the    let_al  title 
but   uncer   circumstances   that   he    should  hold    it    in  trust    for   the 
younger  brother, 

(lictation) 
Although  a   court    of   equity   recognizes   the   gen- 
eral principles    of  the    lav;  it   may  under   certain  circums-  ances 
where   justice    requires   avoid    the    strict   application   of   its 
principles  by  making   of   the   holder   of   the   legal  title   a 
trustee   for  t]ie   benefit    of  onewho  has  an   equitable    interest. 


VIII.  ^OUITY  JURISPRUI'T^ZTCE.JR.  u7. 

Story's  "equity   Jurisprudence     'ar.    64. 
In   this   ParaGraph  you  will   find  this    illustration 
that    I   hive      i-en   in   nuhstance. 

"Equity  nay  be   sai.     to    I'dlow  the    Ic  in  that    it 
£.prlies   to    equitable    estates    aorae    of   the   rules  by  \Thich   lef^al 
estates    are    governed.    Take   the    statute    of  Limitations   for   a.n 
example,    it    says   not'iin;;   in  re_;ard  to   equitable   estates    or 
interest  (in  nany  of  the    states   the   lan^ua^^e    of  the   statute  has 
been   Bhant;;ed   so   as    to   a-''   ly  to  hoth  legal   cnC.   equit-ble   estates). 
But    where    the    change   has   not   been  made    or  before   the    chan,i:r'  was 
made    it   \ie.s   the    custom   of   courts    of   equity  to   re^^ulate   equitable 
estates  by  the   statute    of   limitations, 

(Dictation) 
■plquity  may  be    said  to    i'ollo\7  the    lar   in  th.at    it 
;  P'  lies  to   equitable   estates   and   interests    some    of    "he 
rules  by  '..'hich  leaal  estates   anc    interests   of   simili.  r 
kind  are   ijoverned,    Vor   example   the   Gta-tute    of  limitations 
•voulc'   a   '^ly   in   equity  cases  as   in   Irw  cases   as   <-.   rule   even 
though  equitable    interests   are   not   mentioned   i;i  the    statute 
"Equity  usually  ej:   lies   to   equitable   interests   the 
lav;s   of   cescent   inc.   inlieritance . 
"f'omeroy's   *^q.    par,    4;6, 
3is^ha2:i' s  ]'q,   par.    36, 
Story's  :io,    54  b. 
I   v'ill   conclude   T,7hat   I   have   to    say  as   to   tlie   maxim 
that    e-iuit"   follov/s   the    lav  by   r-epeating  my   form,  r   suc;£;est- 
ion  that    the  maxim  is  partial  ano    limited    in  its   a     lication  and 
cannot    like   the    other  maxim  be   treat -^d   .  s   embocyin_:   a   r_'?neral 
"rinciple,    I   \'ill  not   take   up   the    third  g  neral  ma,xim  •..■hich  is 
c  s   follow: 

3,   '."here   there   a'.^e   equal  Equities  the    :'irst    in   order 
of   time    shall  pre  "c  il. 

That    is   the  '.yordin.^    that    is   orc-inL'rily     iven,    T^ut 
I   think   that  the  v/orc'ini_:   is  an  u.ifortunate    one  because    it    is 
apt    to   be  misleading,      Vliere   the   equities   are   equ-.  1  the   first 
in   order   of  time   ^^^ill  -^r^vail,    let   v.s    see   v;hat   this  means.   "'■.Tiat 
is  the  meanin;!.   tliat    it    conTeys   to   you,    ''or  exai'nple:    the    ovmer  of 
piece    of   real  estate   olives   tv,'o  mortgages   uron   it,    to   two   differant 
:nortgagees.    The    one    takin.j  the    second  raort;jage    does   not    know  of 
the    existence    of   the  first  motgace,    neither   of   the 

r..o]'tgases  being   recorded.   The   equities    of  the  mort;_,a,'jees   are 
exactly   equal,   "But   according;  to   t"iis   i.iaxim  the    older   equity  will 
prevail,    if   that    i?.   what  the  mi-xim  means.    There    is  aviother 
maxim  usually  considered    in   connection  with  this   one,    that    is, 
where   the    equities   are    equal   the    Icr.:  shall   .  revail.   YvTiere   the 
equities   are    equrl  cr  evenly  balanced,    equity  v/ill  hrve   not"  ing 
to  do  wit      the   case,    one  party   is  not    entitled  to   relief  any 
more  than  the    other.   E.uity   simply   says  you  go   to  ?•    court    of   law 
and    if   one   of   you   ■"•e-''e   a  le;;al  right   then  that   shall  prevail. 
V/lien  the   equities   are    in  all   other   respf^cts   equal  except    in 


I 


VITI.  Ty  m'TY  J\rjS^?JJ.K  :ZF. .    JP.  56.  4 

ma-tei'   oi"   -time    the    older   equity   shall   prevail.    This   v/hole    subject 
is   very  nicely   discussed   in  the    cise    of  Rice   v,      ice(Lrew  73):  ^ 

Illustri-.tive   d.ses   ])€.j.e   23,    "The    question   to   "be   decided   in  this 
case   is  v;hethf^r  the   equitrble    interest    of  the   plaintiffs    in   res- 
pect   of   the  vendor's    lien  for  unpaid     urch?  se  money   is   to  be 
■"•referred  to   the   equitable    interest    of   the   defendtait   ;  s    equi      bl-- 

^'Tiere   a   ■'erson  has    sold  a  piece   of  pr  perty  v/ithout 
any   SKicurity  h^  v;ould  hfive   v/hat    is   knov/n  as   the   vendor's    lien 
upon  t]-.e  proper-ty   for   the   v;npaid    .":urchase  inoney.    /fter  he  has 
made   the    sale,    the    vendee   gives   an   equita'.^le  mortgage   upon   the 
:^ropety,    one   that    is    irre   ular   in   form  but   vrhich  T/ould   be    recog- 
niz'^d   in   o    court    of   eouity.   Equity   looks   r.  t   tlie   intent    ra.ther 
than  the   form.    The   -'endor's   lien  5.nd  the    interest    of   the      equit- 
a.ble  mortgagee   e.re   prrcticably  equal.    "}'.icli  shall  prevail.   Let 
me    read   from  the   d   cicion   in  this   case    of  Rice   v,      ice: 

"'"liat    is   the    rule    of   a   court    of   equity   for   c  e- 
termining   the   prefera^ice   as   between  persons  having  adverse    equit- 
rble    interests.   The   rule    is    some   i^nes   expressed   in  this   form,    ".',s 
betvvrren  y^ersons  ha.vin,;   only  equitable    interests,    that  r/hich   is 
^^rior   in  time    is   the      rior  ri^ht .   This    is   an   inco  rect    statement 
of     he    rule,    for   that   proposition   is   far  from  being  universally 
true.    In' fret,  not    only   is   it   not   universallj/"  true   as  bst^/'een     er- 
sons   hrving   only  equitable    interests,    but    it    is   not   universally 
true    even  where   their  equitable    interests   are   of  precisely  the 
Scime   natiare ,    and    in   that    respect   precisely   equal,    as    in  t'  e   comraon 
case    of   the   two    .  ucessive   assignments   for  valuable   consideration 
or   I     reversionary   interest    i]:i   stocK   standing   in  the   r.rxies   of 
trust  'es  where    the    second  assignee   has   given  notice   and  t]ie   first 
has    omitted   it ." 

"/'nother  form  of   seating  the   rule    is   this,  "As   between 
persons   h.  viiig   only   equiti'ble    interests,    iJ   their  equities   are 
equal,    the   party  v/ho    is  prior   in   time   has    the  prior   right".   This 
form   of   stilting  the    rule   is  not    so    obviously   incorrect   as    the 
former;    s.nc'   yet   even  this   enunciation   of   the   jr-ule(v;hen  accurately 
considered)    seems   to    involve   a   contrjic  ict ion,    for  \/hen  we   tallc  of 
two  persons   havin,.    equal    or  vnequal   equities,    in  what    sense   do 
we  use   the   tQ''Tn"equity?"   j'or   e>caraple,    v/hen   'e    say  that   /    hr  s   , 
better   equity  then  ?,    what    is  meant   by  tha.t  '   It   mean      only  t";;at 
according  to   th.ose  princi]/les   of   right   and   justice   which  a   court 
of  equity   reco.^nizes   end   ccts  upon,    it   will  prefer  A  to    ■■. ,    v.nv 
will   interfere   to    enforce   the    ri,;,hts   of  A  as   a^iainst  ?.,    .  ncl  there- 
fore  it    is    impossible  ( strictly  speaking)   that   two  persons  fehoalcl  hcive 
equal   equities,    except    in  a   case    in  'vhich  a  court    of   eqviity  v/ouic 
altogether   refuse   to    lend   its   assista.nce   to   either  party   as   afainst 
the    other.    If   the   Court   v/ill   interfere    to   enforce    the    right    of 
one   against   the   other  on  any  ground  whatever,    say   on  the   ground 
of  priority  of  yime-  how  can   it   be    said  that  the    equities   of   the 
two   are   equal''    i,e,,    in   other  words,    how  can   it   be   said   that   the 
one   has   no  better   right   to   call   for  the    interference    of   a    ccurt 
of   equity  than  the    other?   To   lay   do\7n   the    rule   therefore   with  per- 
fect  accuracy,    I   think   it    should  be    stated   in   some   such  form  as   this, 

_/_/___  Oct.    17    1902. 


IX.  EruiTy  JUPis^RUx,xi-CE.    JR.  39. 

izcTUR}^  i::. 

(  'ont'd  from  Teot.   VIII.) 

"AS  "between  persons  licving  only   equ.itaole    interests,    if   their 
equities   are    in  r.ll   other  respects,    priority  of   time   gives   the 
"better  equity,    or   qui  prior   est   tempore   potior   est   jure." 

Oct.    Iv'th    190,:. 


I  was  speakin^;  of  the  maxim  which  I  think  I  numhered 
three,  vrhere  the  equities  are  eoual  the  first  in  order  of  time 
shall  "prevail.  If  we  interpret  that  maxim  literally  v/e  should  not 
arrive  at  a.  correct  conclusion.  The  maxim,  seems  to  mean  thut 
where  two  equities  are  e::.',ctly  e-;Ual  the  older  will  prevail,  that 
is  not  always  the  Cc-. se  "by  any  means,  P    Court  of  Equity  does  not 
decide  equitahle  cases  u;.on  th.e  princi  le  of  priority  of  time  ex- 
cepting in  a  case  where  the  equities  are  in  all  other  resj)ects 
equal  except  that  of  time  then  the  equity  that  is  the  older  v.'ill 
prevail.  In  a  case  of  this  kind  ?■  court  of  equity  v/ill  look  over 
the  whole  case  anc  if  the  court  can  find  any  equity  upon  which 
to  decide  the  case  excepting  this  equity  which  ^ro^"'S  out  of  pri- 
ority'- of  time,  it  will  decide  it  upon  that  riijht  rather  than  the 
equity  connected  with  priority  of  time.  ~ut  if  after  looking  over 
the  case  it  finds  that  the  equities  existin;j  "between  parties 
^la-ving  only  equita"ble  interests  ai'e  equal  except  in  matter  of 
time  then  it  v/ill  hase  its  d-..cision  upon  priority  of  time.  The 
case  of  Rice  vs.  Rice  is  an  illustr-  tive  case  u]von  this  maxim.  I 
think  I  cited  it  to  you  in  the  last  lecture.   In  this  case  one 
of  tl^.e   arties  had  a  vent-.or's  lien  and  the  other  had  a  mort^'a^'e 
secur-ity  on  the  same  piece  of  property  that  were  related  in  such 

way  that  their  equities  were  apparently  equal.  Tlie  vencor's 
lien  hein;;;;  prior  in  time  it  was  claimed  thrt  it  should  prevail 
"but.  the  court  held  that  there  were  other  equities  upon  v;hich  the 
case  mi'j,ht  "be  cecided  and  therefore  the  mavXim  did  not  a:oply  in 
the  case.  The  case  is  a  ^'ood  one  for  illustro.tin^  the  mieaning 
of  the  rarxim.  Let  us  take  another  case,  suppose  there  are  several 
successive  mortgages  given  u^on  a  piece  of  proyjerty,  the  mortg- 
agee of  the  last  mortgage  not  knowing  of  the  existence  of  the 
first,  neither  "being  recorded.  TJnder  chose  circumstances  the 
equita"ble  interests  of  ."le   parties  are  identical  and  the  equit- 
ies c^re  ea_u;l  and  neither  has  -.  "better  title  than  the  other  un- 
less the  older  equity  prevail  "becai-;-.e  the  equiti.'s  are  in  all 
other  respects  e.-'url,  the  only  difference  is  that  one  hrs  secur- 
ed his  mortgage  first  and  in  t  at  case  the  older  equity  will 
prevail  inC.   the  maxim  applies, 

(Dictation) 
This  ViicXim  as  corarionly  -.iven  in  the  books  fails  to 
express  fully  its  true  r.ieaning.  J    court  of  equity  will 
never  cecide  a  ccse  upon  t'^e  principle  of  priority  of 
time  givos  the  "better  right  where  there  is  £iny  other   ri- 
ci'-^le  upon  v/hich  it  ccji  rest  its  c.ecision.  Priority  of 


IX.  EQUITY  mrpiiUL'y.xr.'E .  j^v.  40. 

tin^e   ,;ive.     the   better   right    in  equity  cases    only  when  the 
equties   of   t}ie   parties   are    in  all   other   respects   equal. A 
"better  v/ording  for  the  i.iajxirr.  './ould  "be    the   i'o    lov/in,, :    As 
between  persons  having   onl//  equitable    interests,    if  the 
interests   are    in  r 11   other   respects   equtl,   priority   of 
time   ijives   'che  be    ter   ripht. 

Pice   vs.    lice .  (illustrative   Oase   '^j  £8   .j3,     ) 

(Study   this   cr.se   carefully) 
Terry  vs.   .■"utual  Insurance    "o.,    2   Johinson  V  .Y .    303, 
That    is   a  case   of   several   successive  "iiortgages  upon  the 
same  rjiece    of    lane. 

The   next   rax in  is    as    follows: 
4.    m^W.   r'ERZ'l   IS   ~^^UAL  "^QLTTirS   T-^IE   L-'^'f  "  UST   "^K'^YAIL 
The   meaning   of   this  meyAm  can  be  niaue    clear  by 
illustration.    let   us   su  T;ose   A   inc.  E   each  to  have   equal   equit- 
cble    interests    in   r    certain  niece   of   real   estate,    while   thus 
situated  escji  is   equally  entitle;'   to   the   aid  and  protection   of 
i    court    of   equity.   But   /    ■  Iso   obtains  the    leLt-l  title   to   the 
property,    ncvf  he   luis   the    equ'-table    intsrest    anc'    the    le^el   title. 
The    equitable    interest    ore   equal  but   A  having   thn    lejal   title 
must   prevail,    for  where  there   are    equal   equities   the    lav;  must 
prevail,      /nother   illustration   is,    where   a  pii  chaser   of  pro- 
p-rty  buys   it   for  a  valuable   consideration  without   notice   of 
prior     equits.ble    rights,    as  a  general   rule  he   gets   the   legal 
title    tJid   also   the    equitable    title,    the    equities    of   the   tv/o 
parties   are   equal  but    the  purchaser  has   the   le  x-.l  title   and  the 
Irv;  under  those   circumstances  v/ill  pre^'"ail. 

(Lictction) 
The  meaning  of  this  mexim  is  that  where  two  parties 
each  has  an  equitable  interest  in  a  piece  of  property  , 
their  equities  bein_:  equal  an^  one  of  'chese  parties  ^jets 
the  le  'al  title  tlier  to,  the  one  ,^ettin^  the  legal  title 
must  ijrevail.  The  equities  being  equal  there  is  notriing 
in  the  case  upon  which  a  court  oi  equity  can  act  and  the 
Pcirties    therefore   will  be   turnec    over   to   the    Ir.v;  courts* 

?]conomy   Pavings  Paji^:  v,    •Jorcon( Illustrative   cases 
page    19) 

Also    re:..orT.ed   in  45  Atl.    176;    90  "  ,.  ryland  466. 
Pom  roy  ^"Iquity,    ■'.-ar,    7  57. 
The   next    of   the  maxims  v;hich  is    the    fifth  is   as 
f  ollov/s:-- 

]U^  Y/tlO   S^EXS   "'yJITY  iiUf^'T   J>0  EOUITY. 

The  principle  embodied  in  this  maxim  is  of  very  fre- 
quent a'nplication.  The  meaning  of  the  maxim  is  this,  a  court  of 
equity  will  not  confer  8.id  upon  a  party  seeking  relief  unless 
such  party  is  \.-illing  to  do  what  is  equitable  and  just  in  regard 
to  the  other  party  to  the  contraversy.   A  court  of  equity  in 
giving  relief  to  a  complrinr-nt  in  a  suit  in  equity  will  do  so 
only  u^on  the  terms  that  the  complainant  consent  to  give  such 
corresponding  rights  to  the  defendant  as  he  may  be  entitled  to 
regarding  the  subject  matter  of  the  suit.  It  is  by  virtue  of  the 
principle  of  this  maxim  that  a  court  of  equity  can  render  a  con- 
ditional decree.  Almost  every  decree  is  conditional  in  its  nature 


IX.  EOUITY  JUiaSPRlTOEKOJ.  JR.  41. 

where  the  ccr.travcrsy  is  at  all  complicated.   Tho  equity  court 
will  look  over  the  vrhole  case  and  dsitribute  equity  equally 
among  the  parties.   But  please  remember  that  the  application 
of  the  principle  of  this  maxim  does  not  justify  u  court  of  equity 
in  imposing  arbitrary  conditions.   The  court  v/ill  not  go  out- 
side of  its  settled  principles.  The  conditions  imposed  must'  be 
immediately  connected  v/ith  the  subject  matter  in  dispute  before 
the  court,   I  dosirc  you  to  notico  particularly  that  the  the 
equitable  rights  of  the  defendant  that  arc  to  b^  conceded  by 
the  complainant  as  a  condition  to  the  granting  of  r.-^liof  must 
be  such  as  grow  out  of  tho  subject  matter  of  the  suit, 

(rictation) 
Thc'  principle  of  this  maxim  applios  v/honevor  a 
conditional  decree  is  rendered.  A  court  of  equity  will 
never  grant  relief  to  a  party  except  upon  his  doing  what 
is  equitable  as  regards  th.i  other  party  to  the  contraversy, 
"But  arbitrary  conditions  cannot  bj  imposed.  The  court  \7ill 
not  s'o  outside  of  its  settled  principles.  The  conditions 
imposed  must  be  immediately  ccmi  cted  v;ith  thj  contraversy 
before  the  court. 

Comstock  vs.  Joluison.   46  IT.Y.  64-'5, 

(Illustrative  Cases,  page  ';6) 
A  court  of  equity  v;ill  apply  this  maxim  in  favor 
of  the  defendant  against  th"!  complainant  just  as  it  v;ill  apply 
it  in  fa,vor  of  complainant  against  th-  defendant  v/here  the  ex- 
igencies of  the  case  roquir.-i  relief  be  given  to  the  defendant,,.  . 
Und '.r  the  Code  System  of  procedure  and  in  the  system  of  some  of 
t]!.'  states  having  separate  lav;  and  equity  tribunals  the  defen- 
dant in  a  suit  raay  interpose  ..n  affimativ:  defence, for  example 
suppose  f.  mortgage  is  soughx  to  be  f  orclos  ,d  against  a  party  arid 
he  d  sires  to  plead  a  pajinent  r-xi''.   r.- lease  of  the  mortgage,  uiider 
the  old  system  he  -.voul;^  have  to  file  a  cross  bill  in  order  tr,q;ct 
relief.  But  the  practice  in  that  respect  has  been  changed  ir^' many 
jurisdiction  by  statute  and  rules  of  court  and  permit  a  defendant 
to  sot  up  an  affirmative  case  in  his  r:isv;:r  to  be  used  as  a  defense 
and  as  an  affirmative  relief.  In  this  particular  case  this  mr:xim 
-rould  apply  in  favor  of  the  defendant.  The  defendant  is  entitled 
to  affii-nativo  relief  but  the  court  -./ill  not  grant  hLm  a  decree 
unless  ho  does  xrhai    in  equity  an'  justice  he  ought  to  do  in  .  . 
favor  of  the  complainant, 

A  great  many  illustrations  of  the  application  os  this 
r-'u-'-jJcin  are  scatter  :d  through  the  books  and  I  vrill  give  you  a  few 
illustrations  in  order  that  you  may  better  understand  the  use 
en"    ar;olic:.tion  of  this  mrxin. 

The  cas  ;  of  a  borrov/er  of  money  at   usurious  rate  of 
interest  coming  into  court  anc'  asking  to  h.ave  the  transaction 
set  aside  by  a  court  of  equity.  Kc  can  get  this  traiisaction  set 
aside  if  there  is  a  lav:  against  usury  ,  but  he  could  do  so  only 
upon  his  off  ;ring  to  "do  v.'hat  is  just  anr".  equitable  tov/ar^'s  the 
defendant,  that  is  to  pay  back  to  him  the  principal  v;ith  legal 
inter .st , , 

yi-n other  c4-so  is  vrhere  a  man  has  taken  an  instrwicnt 


IX.  J^UIT^:  JITKISPP.U.  j<]NCF,,    JR.  42. 

fron  ■  not'    r  the.t   in  ucurious   in   noi.io  p-j.rticular,   but   tli-j    inntru- 
■:ont    ir.   on:   that    if.   not  porf  :Ct    in     11   its  pi-.rts  an^     t]io    rijhts 
of   the    ;-f'rty  taking,   th  :    inr.trix.iont   r  ro   not    in  all  Ts^spocts 
^Tot   ctTc"',    an'-'   he   coos   into   i.  court    of   equity  an('    asks   for  a 
r ,.'.  omation   of   tho    instriuiont ,   The   court   'ill  ^^rant   a  docrcc   for 
the   reiornation   of  the    instruiiont    only   on  c  ok '.it  ion     that   ho   c'o 
v;hat    is  just   an.u  ri^ht   to-.;- rds   the    othor  party,    nr^^oly  olii.:in;tc 
fron  the   instrunont    its  usurious   character. 

/iiotlier  case    is  z   hill  filet.:    in  equity  to  redeen 
fron  a  nortga^e   •.v.hich  is  past   c'.ue.      IJov;  a  bill  to  receen  alv/ays 
necessitates  the   ap;)lication   of  this  :-.i£jx:in.   :    court    of  equity 
will  not   :;;rant    the   ri£:ht    to   redeen  except   upon  the    condition 
that   the   complainant   do   tov/ards  the    defendant   v/hat   is   equitable 
and  just,    namely  paying;  to   defendant   tho   debt   actually  due   and 
interest   up   to   tJae   time   of  the  hearing  end;  le  ,rl  costs. 

Brov.'n,   Bonnell   "c  "Jo.,    v.   Lake    Superior  Iron   -o. 
(Iliustrati-.-e   cases  pat;e   27) 

Also   reported   in   134  U.S.    530i    10   Superior  Ct.      604. 
I   v'ould   like   to  have   you   stud     these   tvro   cases   above   cited 
as  they  il^lustrate   the   apT'liC'tion   of   this  m;::cin» 

The    sixth  n- xim  is   as   follov/s: 

Iffi  VT  0  GO:r",S    IIJTO  E'^UITY  !^'^T    COTU"  ^."-ITH  CLUA^I  ILAJ'S. 

This   is   the   fom  that    it    is  usually   ^i'.'en  in.    Some- 
ti^nes  yoii   v/ill  find   it   given  in  this   form,"   He   that  hath  coiEiitted 
iniquity   shall  not   have   equity."  The    last   tv/o  nt-jcins  are  not 
expressions   of  any  pe.rticular   doctrine    of  equity  jurisdiction. 
They  simply  embody  principles  that    regulate    or  linit   the   juris- 
diction  of  the   court    of   equity.   These   t\70  na:>:ims  are   alike   in 
this   respect   but    differ  in  another  v/hich  I   uill  mention,      "^.here 
the   first  n;axim  applies   the  party  seeking   relief  nay  he  ve   re- 
lief  if  he   is   v/illing  to   do  what   is   equitable  and  ju-t   tov/ards 
the   other  party.      It   nay   apr.ear  to   the   court   tlu'.t    the   party 
seeking   relief  has   net   done   equity  at   tjie   t  irae   of    '.he   filing   of 
his  bill  but    still  he  may  be   given  :\  decree    if  he   is  v/illing  to 
do   what    is   equitable   anc    just   tov;ards    the    other  party.   ?3ut    in 
the   case   where    the   last  miaxim  applies ("Ke   \7ho   canes   into   equity 
must   come   v/ith  clean  hands,")    the    doors   of  equity  are   closed  at 
once   against   the  partj''  v/ho  cones  before   the   tribunal  v/ith  un- 
clean hands.   He    is   ccnoGTiincd   for  his  previous    course.    The   court 
v/ill  not    say,    clean  up  -our   record  and  promise   to   do  vrhat   is 
equitable   ojid  just   and  ycu   shall  have   relief,   but    says,   you  hi  ve 
committed   iniquity  and  you   shall   not   have    equity.      If   it   appears 
from  the  bill   of   complaint   that   he  has   comniitted  iniquity  you 
nay   demur  to   the  bill  anc   have    che    case    'chrovm  out    of  court.    If 
i-   appears   during  th.-^    course    of   the  proof   that   he   has   co  ..litted 
iniquity,    the   doors   of   equity  will  be    closed  against   him,    in 
other  v;ords   he   vdll  not   be   av;arded   relief  under  those   circums- 
tances. 

(Dictrtion) 
The    lc.st    two  mjxim.s   embody  principles   that   regulate 
the   jurisdiction  of  the    court    of   equity,    they  do  not    embody 
a.ny  general  equitable  principle.    They  are  alike    in   this 
particular  but    differ   in   another,    namely,    -..here   the   first 


IX.  .T^qUITY  JURISPKIT^ENCE.  JR.  43. 

m.  xim  applies  the  court  v.ill  enter  a  decree  cirecting  the,t  justice 
rnd  equity  "be  c.one  to  the  othor  "arty  thereto  "before  the  decr'se 
crji  136001116  effective,  V.'here  the  second  mc-^zim   applies  the  decree 
of  the  court  rausi..  alT/a;y's  "be  a  dismissal  of  the  case  of  the 
party  who  has  coirauitted  ini.uity. 

Let  me  sugc>es"t  that  in  the  ap'lication  of  the 
principle  of  this  maxim,  the  iniquity  must  "be  of  the  transaction 
that  is  "b-fore  t]ae  court  and  not  as  regards  some  inc  ependent 
transaction. 

PleaJcley's  Appeal,  (Illustrative  cases  pa.  e  30.) 
(66  Pa.  ^t.  1S7. ) 

T>''p"i''n  ^'s .  ""'alt on(  Illustrative  Cc.ses  pace  31) 
(20  K.E.  203;  46  Ohio  St.  19  5) 

Is   an  example  of  tha  application  of  this  maxim,  let 
us  sup;'iose  a  porty  "by  taking  undue  advantage,  and  "by  unfair  means 
obtains  a  contract , which  is  ujifair  and  unconsciona'ble  that  the 
party  from  whom  it  is  obtained  be  requirec  to  perform  it.   If  he 
seeks  to  enforce  its  pormance  in  a  court  of  equity  his  prayer 
will  be  denied  because  he  has  committed  iniquity. in  obtaining  the 
contract , 

Plummer  vs,  "■:epler(26  "l!.J.  'Equity  481. 

:vnell  vs,  TTiccheK  65  JIaine  48-50. 
\^hen  it  appears  that  a  party  seeking  the  aid  of  equity  has 
tainted  his  claim  with  fraud,  the  relief  v/ill  be  denied.   The 
case  of  Overton  v.  Bannister  3  Hare  503  'ng,  hancery  is  an  ill- 
ustration of  the  application  of  this  maxim^  under  such  circtunstances, 
."  minor  ap'olied  to  his  trustees  for  the  transfer  of  certain 
rro  erty  which  they  held  for  hiri  representin^i  to  them  that  he 
vas  of  age  and  therefore  competent  to  enter  into  necotiations 
for  the  transfer  of  the  property.  He  looked  to  be  of  age,  and 
the  trustees  made  what  they  thouj^ht  to  be  proper  investigation 
to  I'ind  out  if  he  was  and  ma  e  the  transfer  to  him.  As  a  matter 
of  fact  he  was  still  a  minor  and  when  he  had  wasted  the  value  of 
the  pro'^erty  he  then  turned  around  anc  brought  suit  asking  the 
court  to  compel  the  trustees  to  account  for  the  property  that 
t-ey  had  transferre'-  to  him  v/hile  h-3  v/..s  a  minor.  The  court  said 
to  him  you  cannot  do  tlii-t ,  j'-ou  do  not  come  into  equity  with 
clean  hands, 

A  party  wrongfully  altered  a  written  instrument  and  \7ent 
into  a  court  of  ei.uity  and  sought  to  get  v   decree  for  the  reform- 
.  tion  of  the  instriunent.  The  court  said  you  did  wrong  in  altering 
the  instrument  v/ithout  the  consent  of  the  other  pi  rty  and  unc  er 
those  circumstances  you  pre  not  entitled  to  relief. 

Another  illustration  is  found  in  the  case  of  eji   in- 
solvent who  transfers  prop'r^rty  to  some  .  rined  in  order  to  nsc;  pe 
the  demands  of  his  creditors.  He  afterv/ards  compromises  v/ith  his 
creditors,  so  that  he  deems  it  safe  to  take  the  title  again  in 
his  o\7n  name.  He  goes  to  his  friend  and  asks  him  to  transfer  it 
back,  the  friend  says  you  ovm  no  interest  in  the  property,  you 
trj.nsf erred  it  to  me  and  I  propose  to  hold  it.  The  party  -/ill  say 
''ou  paid  me  no  consideration  for  it  and  v;ere  only  to  holt  ?.t  for 
a  certain  purpose.  He  then  goes  into  a  court  of  equity  and^seeks 
to  have  ^he  property  convoyed  back  to  him  and  sets  up  the  facts 
that  the  property  really  belongs  to  him,  but  the  court  says 
the  purpose  of  the  transfer  was  ^n  iniquitous  one  and  for  the 


17.  EQUITY  JIRISPRUDEITGE.    JR.  44. 

purpose   of  oefraudini?  your  creditors   and   the   court  will   leave 
you  just   Y/here  you  are.   There  ma^'  be   sometines   cases   v;here    it 
is  justifiaole    for  a  ptirson  to  put   his   property  out    of  his  hands 
to   escape   the   demands   of  creditors.   And   it  may  be  necessary  for 
him  to   go   to   a  court    of   equity   in   order  to   got  his  property 
back,    if  ho   can   shoT?  that  his   courso  v:as  Justifiable   uj-i.-.^r  the 
circunintrjicos ,    and   that   the   claim  \7C:S   an  uj:ijust    one,    and   that    it 
•.Tas  just   and   ccuitable   that    tho  property  bo  plac'xl   so  th.^t    it 
could  not   bj    .T.barrassod  by  tho   creditor,    the   court   will  grant 
relief ,      I  hav^    in  mind  a  case   v'horo   th;   plaintiff  v/as   seeking 
to   got   b'.ck  property  that   ho  had  convoy  jd  to  his  broth.jr   in 
larr.   He   had  put    tho   property   in  tho   hancs    of  his  brother   in   lav; 
in  ord-r  to   escape   th-;    domands   of  certain  creditors.   Thj   claim 
•"as   CUT  unjust    one   and  the   cr-ditors  ■.•.■jro    s-oking  to   onbarass 
hill  in  liis  bup;iness.   The   claim  v.'as   af t  .^rr/ards   compromised  and 
the  brothor  in   1  -.'  dvcided  to  ke.-p   the   property,     Ke,    tho  plain- 
tiff  sou:;ht   to   r:^covcr  back  his  property   in  a  court    of    -quity, 
and   by  his  proof   shov.'od  that  ho  -.'as  justifiod  in  his   cours>   and 
the    court    sr.id  that   the   mf:j:im  difl  ncz    apply. 

Anoth  r  oxariplo    is   --horo   scv:ral  pr-rties   joined  thon- 
solvos   together  for  the  purpose    of  perpetrating   a  fraud  vrith 
the   un^^   rstan   ing  thr.t   each  is   to    share   in  the   profits  of   Lhe 
"onturc.    One  party  gots  a.ll  the  profits  and  refuses  to   divide. 
Tho    others   so :k  to   force  hin  to    nhar^  up   th:   profits   in  a  court 
of   equity.    In   such  a  car-o    equity  v/ill  not    grant    relief  but    lea 
tho  '-arti-is  v.-hore   th-^y  find   tlionsolves , 

7,      EQ.UITY  AIDS   Tffi^   YlL^lLj'liT  SOT   THOSE  l^'HO   SLXJISER 
Oil  TID']IR  PJC-KTS. 

In  Gth. r  v.'crds   '".elay   r  •;fcats   equity. 

oOo Oct.    2ord   1902. 


^rTrt 


X.  EouiTY  ju:;irp^";toei;cj^  jk.  45. 

'■'.;    •-■■c   rci'Ch-u  t>j    G   v;;:.th.  ■  ir,:>ci::  in   •■  ur    .".iGcussicn.   Tiic 
sjvor.t}!  ;-..■  :zin  if,  usu.-.lly  :.,i"'cn   in  this    i'-  r_:i,    "."•Equity  c-if.s   tlio 
vi/ilnt,    Kct    tjicso   ■..■■ir   slm.i'bor   on  their  ri.^,hts,"    Sonjtinos    it 
is   /■i-- .ji   in   tl'ii^    fcr-n, '•r-clc;.;''   ••.oi'o.-ts      equity-.    This  n::>:ii".i  :;oc(".s 
nc    ST'Coir;.!   c:c"l:.nr.t i(.n   xor   itr.   :i^v.y.inc:   is   pl;.,in,   ]^nuity  r.l'./r.ys 
r-.:rus.3S   tc    enforca    stalo   <.lcri,-.nt'c.    IT  the-    Statute    cf  Liniteitions 
has   run  r.cc-inst    l.'/j    ('.or.iaiic. ,    even  thC'UjJi.  tho   statute   coos   not    in 
tenns   r-fer  to    oquitr.hlo   ir.terests ,    equity  \7ill  ccnsirlcr   the 
iv.atter   zzv.le,      J.  i.iattor  .ncy   do   re^arc.ecl  as   st£il3    in   equity   even 
thcu::;h  the   Ctatute    of  Li?:iit.  ticns  he.r^  net   run  cic^'-inst    it,    es- 
pecially '.'."here   tiiirc:  3-)artios  ]aavG    acquircc'.   int;3rest3   in   tJic    sub- 
ject  j:;a'oter   of   the    liti.:;:t i';n,      Tho   Statute    of  Liriitations   is   a 
c_uide   for  tJie   court    cf   equity,   hut    it    is   not   alv/ays   the   recic'.inc 
feature    in  the   case    for  the   c.en;.  nc.  nay  "be    stale   even   if   not   barr- 
ed   oy  th.e   Statute    of   I.initations,    if  all  the   facts    of   the   case 
indicate   thrt    equity   and  justice   reqiiire   that   the   demand  should 
net   bo    enforced  on  account    of   its   iC^» 

(riictation) 
"dquity   fl'.7ays   refuses   to   eiiforce    stale    demands .    If   the 
Statute    of  Lir.iitcitions  has   run   against   a   dera;nd,    then   it 
■■ill  net   bs   enforced  by   a   coui-t    of   equity,    ond    in  nany 
cases    it    v;ill  not    be    enforced   e^-^n  thou^ih  the      statute   hp.s 
not    run  a:;;ainst   the   clairi.    Su.ch  v/ill  be   the    resiilt    if   in 
the   juojfnent    of   the   court   the    dei.iand  he.s  becone    s'a-le   <  s 
th-.  t    ten:.:,  is   understood    in   ecuity. 

'peiael  vs.   Henrici  (Illustrati'.'e    Cases   paje    15.) 

(120   U.-\    377  i    ^    Sup.    Ot.    GIO.) 
The   a:''^r-liCc;t:. en   of   this   ;naxi'   is   very  v^ell   illustrate 
in  tiiis   case, 

■°cr.i3rc3'  3]q.    ^/ol.    _,    y.c.r,    49, 
.' s   you   ™et    on   in  this    subject  you  '/ill   realise   that 
equity   very  frequently  rots   or   iSoes  not    act    accordino  to    its 
discretion.      Thier-e   i^re   very  riany   cases   vdiore    it    is   discretionaiv 
vit}i  •     court    of  equity   to   ,'_-i-:.-2    relief   or  no-,    ■j.ive   relief  ,trJ-:e 
the   -Aatter   of    specific   perf orr;;ance   for  excUiple.    It    is   alT/ays 
said  to  be   cMscretionary  "vith  <::,  court    of   equity   to   .^^rant    the 
decree   i^cv   specific   perf omiance    or   refuse    it.      There   are    a  di'^^^-t 
A.'?uiy   c"cher   cases  where   a  ^ecree    frori  tho   court    is   entirely  dis- 
cretionary,   ric   positive   rule    or  ],rinciple    of   equity   require    it. 
In   cases   of   this   I;ind  a   court    of  equi'cy  will  not    exercise    its 
discretion   in  favor   of  a  pf  rty  v:ho   is   ._,uilty   of   latches.      The 
pleadini';s  inust    shorr  that   there   has  been  no   latches   on  the   p-art 
of   the   ])arty  claii'iin.,;   relief.   Eut    if   it   does   a- ear  fro::,  the 
pleadinrs  that   the    oartj/   ser;:hin^-   relief  has   been   ::^uilty   of   latches 
then   such  latclies  must   be   fully  explained  before   the   party   can 
have   relief,   "'l^en  they  are   exnlained  the^'    cease   to  be   latches 
from  the   equitable  p-oint    of  view. 


X.  .EQUITY  JTFIS?RU"^]i:'C^.    JK,  46. 

(Tic tat  ion) 
"  herever   t^ie   action   oi'   a   court    of   equity   is   ^;oycrned 
"by  n.iscretion,    the  ^ixty   seelcin.j,"  the   aic    of   the   court  must 
never  be   .juilty   of   laches,    for   if  he   has  been  the   court 
vdll  not    exercise    its    discretion   in  hi:;,   f-.'ror   until   the 
laches   h;.ve   "been  fully   "xplained. 

-■'S   a   closi;\,   su^-'jesticn   in   re/,ard.   to   this  ii^.xira 
I   \;ish  to   call   you     attention  to   an   iir.   ortant    equitable   prin- 
ciple,   a     rinciple   that    includes   not    only   the   princi'.ile    of   this 
r;ia::in  buo    the   principle    of   the   t\.'0   preceeclin^-   ones,    namely    "He 
•;:ho   seehs   -^.quity  must      o   equity",  "He   who  cones   into   ecaiity 
must   coivie   '-ith  clean  hands,"   o^ii.     ""'quity  ai-.r.    the   vii^ilam:,    not 
those   v;ho    slunber    on  their  ri,jhts.    The   yrinciple   is   this,    that 
nothing  can  call   a  court   of  equity   into   activity  but   ccnscience( 
"Tie   ^-7ho    seeks   equity  nust    .' o    equity"'),    z^ocl   faith(  ""e   v/ho   cones 
into   a   court    cf   equity  must   come   vdth   clean  hands), and   re  son- 
able    c-ili:::3nce(  ".""quity  aids   the   vi;.,ilant,    not    those  v/ho    slumber 
on   their    rl,hts), 

(Dictation) 
::^othin,^    can  call   a   court    of   equity   inxo   activity  but 
conscience,    good   fa.ith  anc'    reasonable   dili.^;:ence. 
S-r.ith  vs.    Clay(    3   :>rov/n     ha.ncery   S36) 
The    ei^-hth  [reneral  i::socim   is   as   follo-./s: 

6.    EOUALITY   IS   ?f^UITY. 

The   naxim  is    sometlies  put    in   tli.is   lonn,    "]].niity  deli^liteth 
in   equc'lity."      The   notion   of   equality   or   imiiartia.lity   is   a  fun- 
dajnental   one    in   equity  jurisdiction.    It    lay  at   the   foundation 
of   the   equity   of   the   romoTi  Jurists   and  i,7as    incorporated   in  the 
^^n^lish   systei.;  from-  the    outset.      The   princi-le   embodied   in 
this  m- xim  is    the   foundation   of   the    doctrine    of  pro   rata   clis- 
trabution   .  nc.   contribution.   This    doctrine    is   not    exclusively 
r^co   nisec   bj^   equity  but    in  modern   times  has  been  adopted  by 
courts    of   la    .     Tliere    several  persons   are   entitled  to   a   partici- 
■■ation   in   one   fund   equity  will  anard  a   distrabution   of   that   fund 
pro    rf'ta  amon^-   the   parties   accordin;:;   to   the  principle   of   this 
na,xim,   .V  Court    of   equity  can   ('o   this    only  ^.Then  the   subject  m.atter 
comes  v.it'iin   its   juriroiction.    The    lav/  formerly   entirely   dis- 
regarded this    idea   of  pro   ro,ta   distr^.bution,    but   Cc'.'re   to    certai;i 
claims    or   classes    or  types   of   claims  precedence    over   other   claims 
in  the   distrabution   of   the   funds.   This  prcceaence   was   dye   to 
the   form  of   the    security  of  a   claim,    thus   a   clai;v'i  on  a  bond  v/as 
given  precedence    over   a  claim  evidenced  by  a   simple    contract. 
That   v;a,3   the    condition  until   equity  be-pan   to   react    u   on   the    law. 

(T)ictc:.tion) 
The   notion   of   equ'  lity   is   a   fundamental   one   in   equity 
jurisdiction.    It    lay  at    the   basis   of  the   Roman  Equity   System 
axiC   has   alv/ays   been   a  characteristic   feature    of   our   o^vn 
equity   system.    The   principle    embodied   in  this   miixim  is   at 
the   foundation    of   tlie    following   equitable   doctrines: 


::.  T^^uii'Y  jiM:i:v^:vr -^:  CT^.  jr..  47. 

"".■•.rst :    Tho    >,.octrine   of   i^ro   ratt:   cistraloution,    by  -.hich  a 
iv/i''.   '/ill   r.lv/ay&  "bo   cistributed   equc.,11'"  'oy   equity   araoiif;: 
those   ^7ho   r  re   ontitled   tc    it, 

'"econd. :    T'-'e    c''oct:"ine    of   conti'i'bution ,    v/hich  I  uay   illustrate 
"by   su,  :.■•_•  est  in^   that   ".,h3n   r    crec.iv,  or  .has   a   3i:-ijle    teyianc' 
a.'.ainst    several   ojirties  he   may  h:   la'?  enforce  his    dei.iejid 
entirely   from  any   oj-.e    of   thein.   The    lavf  will  not    compel 
hir;i  to   satisfy  his  claip'   l-y   ohtnirtini;   equr.l  aj:ounts   fron 
-^ach    of  the   rtehto^^s,   "^".-^    '^    coTT-t    of   equity  acting:  v/on  the 
principle    of   this   mr.::iin  v/ill,    if    it   gets   •.■■os- ession   of  the 
contraversy,    proce-^d  to   equalise    the   '"-urden.    If   the  -./hole 
c  ejiand  Iir-r.    ooen   ohtained  fror.  only   one    of   the   parties    liahle, 
equity  v/ill   enahle    that   pr  rty  to    o'otain  his   cojit  -ihutory 
share   f-om  the    other  parties.   This   doctrine   ori    inated   in 
'equity   and   fo--  a   lonj  time   r/as  peculiar  to   equity   courts, 
/.t   t'-.e   present   time,    probahly   in  til  of   the   stt^.tes,    certain- 
1"'   in  this   state,    contril-ution  may  he   enforced   on  the    lux: 
side    of   the   court,    hut    it    is  because   equity  ha.s   reacted 
upon  the   lav/. 

Contribution   is   .     doctrine  by  '/hich   one   v;ho  has 
been   co;:ipellod  to    -'ay  ;;iGre   than  Ms    just    share    of  a   c'enand 
may  "■.rocoec"   a^^ainst    others  "'ho    are    liable   v/ith  himself  for 
■'J  qua  1   c  0 : 1 1  r  ib  ut  i  Oil , 

}•:  xflar  vs,   "-ooreC    Illustrftive    cases   pace    17) 

(20       .r.,    648 i    40   7.    Va.    49) 
This   case    discusses   the   extent    to   v/hich   the   lav/  courts 
ha  e     .dO'ited  t]-i.e  principle    of   t'-tis   c-octrine, 
Someroy  ^'q.     "ol.    1,    par.    403-7. 
/aiother   illustration   of   this  maxim  and   its   in- 
fluence u'^'on   the   la'.'  courts   is   founC.   in  the    illustra-tion  ve 
find    in   the   ov.aiership   of   Irnd    in   common  and  joint   tena.ncy.    One   of 
the   characteristics   of  joint   tenancy   is   the  principle    of   sui^riY- 
orship.   i'    ■'■rinci;':")le  by  v/hich  upon  the   death  of   one    of  the   ten- 
a.nts  his   entire    interest   passes   to    ohe    survivin.;-,   tenant    instead 
of  qoinp  to  his  heirs   or  j^ersdi.^^   rcpresent^v^ivcs.    It   is  not 
equitable   anr   just    that    a  -erson's   property   so    siti.v  ted    should 
pass  to   c    stroncer   n  ther   th- n  to   those   cornectea   to  him  by 
n.turp.l   ties,   '.'-lien   a   court    of   equity   sets  hold   of  ;•    case   where 
there    is   a   quer.tion  v/hether   it   v/cs   the    intention   of   the   parties 
to   cre;-te    v    joint   tenancy   or   a  tenancy   in   cov.-Lmon,    v/ill   construe 
their   intention   so   as   to  m  he    it    a  tenancy   in   common   rather      TP.ian 
a  joint    tenancy.      The    influence    of   the   equity   courts   h-ave   been 
felt   by   the   lav-   courts   6-na   of   late   the   tendency   of    ohe   1.'/  courts 
has  been   in  the    svme   direction,      Stattitos  have  been   massed   in 
the   different    states   to   the   effect   that   vjhere   a  conveyance    of 
lo.nd   is  made   to   tv/o    or  more  parties  without    any  liinc  beini_:   stad 
in  the   conveyance   ;,s   to  hov;  they   should  hold  the   land,    they  v/ill 
be   consiciered   as   holding   as   tenants    in   co  mon  and  not    as   joint 
tenants.    The    cominon   la^v  rtile  v/as   that   wliere    there   v/cs   a   ccnvey- 
c',nce   to   t\70    or  more   "arties    of   an   interest   in   lancis   without 
anythin^.   being   saio.   in   the   conveyance    as   to  hov;  they  should  hold 


X.  FQUITY  JTOIS^KIL  SNCJ^    JE.  4L  . 

th;.  t   they   should  hoi'.',   as   joint    tenants. 

(Dictation) 
/.nother   illu:tr;:,tion  of   the   a"^-^lication   of  this 
ruocim  anc    its    in.-'luence    is    seen   in   Vvz    c-j.;,n:.,e   that   has 
come    r.bout    in   rerrrd   to   .joint    tenancies. 

The   next    :-n;    iiinth  mt-jcim  is   a^    foll'.o^-s: 

9.  EQUITY  RT^G/RI'.S   THAT   AS   'DOIW.  'r^'ICll  OUGir?   TO  B"'    .'01J7., 

This    is    th.e    orcinary   forn   in  which    che  maxim  is 
.ji'en.   "'or.ieroy,    hov/ever,    ac'ops   t'lis   form,    "?'ic^uity  re/ja.rds    'chat 
as   done    :  m.'    treats    that    as   done   v/hdch   ouc;ht    to   he    done." 
^'orneroy  '^''o.    1,    par.   3u4. 
The   princir.le   ox    thj.s  maxim  lies   at    the   foundacion   of 
that   part    of   equity  jurisprui^ence  v/hich  iir.s   to   do  v/ith  equitablo 

roT-ierty,      "'•'ith-cvxt    the   ar;   lica:ion   of   this  ncoiim  it  wculd   in 
.'.ost    cases   be    ..Ir.ost    iinpossible   for   us   -.-.o  have     property   in   equity, 

The   neajiin,;^    of   this  maxim  can  be    -z^Ahev   from   illustration, 
i'qiiity  •vil.;-    consider   that   pror^ety  has   s.ssumed   a   certain  form 
which  in   justice   anc.   equity   it    ou^'ht   to   stand.    Thus   if   it   has 
been   inperotively   air'cted   in   a   ".■111    chat    lane,   shall  be    sold  and 
turn-; a    into  money,    equi::'  \7ill   consider   t ]i:  t   t;iis  h-;s   been 
aone.    The    subsequent    devolution   of   the   prop>:rty  -.111  be    :,overned 
by  the    lavs   that   govern  personf.l  property   and  not    real   estate. 
Here    real    esti'te    is   treated   in  equity   as  personal  prorerty.      A 
constructive    chE-n£:e    in    che   character    of  proj^erty  has  been  broujht 
about.    This   is   what    is   ca.lled  the   doctrine   of   equitable    convr.r- 
sion.      •"h.erever   the    situation   is    such  that    equity  and  justice 
require    it,    zh^-   character   of   the  property  may  be    at    once   chpniL.ed. 
I  liave   ::i^-en  you  an   illustration,    I   'vill  nov/  ..;ive  :/ou  a    statement 
of   the   '"octrine   a.nd    its   oprr-.tion  that    is   r;;;eneral   in  form  and 
v/ill  "ut    it    in   this  "aay,    v/here  money   is   directed  to  be   applied 
in  t}ie  purchase    of    lind   or   land   is    directed  to  be    sold  and    turned 
into  money,    each  thereafter   ir-    in   equity   considered  as   th.  t 
species    of  property   into  which   it   hns   been   c'irected   it    should  b- 
converted,    this   direction  may  be  by  v:iii,    loy  contract,    by 
r/iarria^.e    settlement,    or   in   any   le.;.al  way. 

(Dictation) 
The   princi"  le   of   this  mejcim.  really   lies   at   the   foun- 
dation  of   equity  property   interests   anc    -at   the  basis    of 
the   doctrine    of   ecuitahle   conversion.    A  doctrine   by  which 
equity  under  certain   circi.ijnstances   will   change   the   chpr- 
acter   of  property  althouch  no   chan_.e   lies   actually   taken 
place.   The    doctrine  may  be   str-.tec    thus,    where  money   is 
directed  to  be    apv.lied   in   the  purchase    of   land,    or   land 
is    directed  to   be    sold  vm    turn'd   into  money, each  there- 
after  is    in   equity   consiaered  as   th  t    species   of  property 
i  ^to   which   it   ha.s  been   directed   it    should  be   con'^erted, 
this   direction  may  be  by   contract,    by   ■;111,    by  marric^ije 
settlenient,    indeed,    in   any   le      1  w;  y. 


y.  E'-^uITY  JU:;i'^]^II'-^?]C:^.    J?  .  49. 

■  'yr-:.;  ji  vs.    ■. '  0  r  t   !"e  n,r  ■•:  o  rn  ( I  ].  u  s  t,  r ; :  t  i  ve    J  a  s  e  s  r)  a  •"  e    4  o  ) 

(  \i^.    :..,    ^-'s-  -p    ?^t.^;    1<,9    Til.    .'79) 

Cr.  i      vs.    I-eBlie   3  '."}-Le'  ton   35^. 
( Ilj^istrr.tive    casns   .  •     e   36) 
This    is   a  very    strikin.;   cp.se    cixo^vin;;,   the   a  plication 
of   thir:,   -^rincivile .      .a   .lien   residing   in    cliis    country  hy 
his   •'■•''ill   c'irects   that    c-rtr-in   lands  he    sold   cjiC.  turned 
into  -oerson'  Ity  i.nC.   t-ie  rrocee    s    of  the    sviae  he   v;,-iYen  to 
another  alien  naned   in   the   instriAi^ient .    The   instruanent   dir- 
ected thc^t   the   es^cutor   sell  the   land   and  to  pay   the  "oro- 
cee:"s   to   the    oene-iciary  ncrr.eo    ip   the   ■.•ill.      ow  under  the 
Irivv  he    could   not    devise    real  esti'.te  hein,:  an  alien  hut   he 
could  hequeath  personalty  ^-.nC.   this   doctrine    of   eo,uic:^hle 
conversion  came   in  to   save   the   devise    of   ret'.l  est    te   to 
th  ■    le   atee.   The   court   held  that    :he   princi   le   of   -quitc.ole 
conversion   a,'/.'".- lied,    and   that    the    real  ;  property  v/as  a.t    once 
changed   into  persono.lty   on   the    teath   of  ;.he   test.'  tor  hy 
force    of    uhe  provision   in  the   v/ill  that    the  pro>-erty   should 
he;    sold  ano    th.e   proceeds   paid  to   the    le._:a.tee. 

Ai;ios   vs.   Hich;.rdson,    ,i5  linn,    330;    13    •-■.'".    137; 

5   .in.    315. 

Poneroy    "^q.      ol.    1,    p?.    .    371. 

oisphp:;!' s  Principles    of     Equity   307. 
A  further   illustration   of   the   doctrine    of   equitahle 
con^.'ersion   is   found   in  the   case    of   contract    to    sell   and 
purchase    land.    A  enters    in'-.o   a   contract   hy  v;hicr;  he   a_^rces 
to   sell   anc   convey  to  L  a  certcin   oiece    of   la.nd   and  75 
af;re3s   to  pa:/  for    fc-   1  nd  at   a  certain  time    in    che   future, 
/.t   IcUY  /    still  continues  to  he   the    ov.'ner   of   the   lant.: ,    only 
^"'erson  v.':;o  has   any   interesT:    in   the    1;  nr    thot   a  court    of 
.Lr.\.'  vrould   r->cc   nise,    end  B   still   continue':    to  he    the    ov.Tier 
of   the    'lurchc  se   money  th.at   he   h<--. s   v.^rced   to  -^ejy   for   the 
land,    only   one   court   of   1  v.^  would  reco-;;nize    as  ii"vino  cny 
title   to   the  Money.   JP-ut    equity  re.^-ards  thrt   as   done  which 
slioulc-   he    rone,   hcw        r.uct    convey  this   property  to  3  u"' on 
the   ra;>Tient    of   the  rurc^iase    price.    On   the  payment    of   the 
iTiCney   it    is  his    'hity  to   convey,    an^   he    should  C".nv:y.    In 
equity  B   is   re  ,arded  has   having  really  p.- id  the  noney  that 
he   has    -roinised   to  pay.   I'quity  re-:;ards   that   as   done   v/hich 
should  ho   t'one.    If     E   is   considered   to   hav-;    done  what    in 
eqiiity   m'.    good  consci.  nee   he    should   do,   then  A  v/ill  he 
rejjrrded   .•  s  holdinj,  the   land   in  trust   for  3.     Upon  the 
execution   of   such   a   contract   for   the    sala    of   land,    the 
vendor  l^ecomes   at    once   a  trustee    of   the  property  for  the 
vendee,    anc    the   vendee   hecomes   at    once   a   trustee   of   the 
purchase  i.ioney  for  the  he;iefit    of   the   vendor  hy  virtue   of 
the  rii^jciri,    equity   re^rrds   t"'..;t   as   done   which  ought    to   be 
done . 

(r.'ic  o.'tion) 

Another  illustration  of  the  application  of  this 
xim  is  found  in  contracts  for  the  sale  or  conveyance  of  realty. 

(cont'd  in  next  lect)   Oct.  24th  1903. 

oOo 


XI.  .aOpTTY  JUi<IS1\^UD:J;TCS,    jr.  50. 

L  J]  c  T  u  R  ;a    XI. 


000 


(Cont'd  iroM  Loot.    X.) 

Here  upon  t.ie   execution  of   suci  a  contract   t  le  vendor  "becoaes 
at  once  a  tr.istee  of  f  e  property    for  tie  vendee   ^.nd   t'ae  ven- 
dee  13600  i.es   at   once   a   urastee  oi    t.ie  pure  lase    -loaery   for  t-ie 
ve7:dor,      '-lere  is   a  case  of   ecuita'ole  convorsion  ■.y  virtue  of 
t:.ie   principle   of   t  .3  naxin,    equity    regards  fiat    ais   done  w.iicn 
ou^at  to   l^e  done»      T'le   principle  of  tiii3     .axira  underlies   t  .le 
entire   doctrine  o.l"   tnj.sts    (not    spea,':ia;;^   of  mod'.rn  tru3ts  but 
trusts   as  understood   m  equity). 

Howard  vs.    Murpi^y    (22  :T.J.    'Equity   531) 

Po.ieroy's    '-Jquity   Juris.    376. 


I   will  now  ta":e  up  t.ie    discusbion  of    t  lo  tenta 
•jeneral  ;;i?v.ci  i.      It    is   usually    -iven  in  t  .\e    following   fori.i: 

10.     ~.QjJTn  Looj-s  TO  Tin;  i:tt'^-;:tt  rathur  tzm  ro  T:i^  form. 

T"ie  principle  of  tiis   -.laxin  is  no'v  rcco-ni^el  very 
l^,r-ely   by   courts  of   law. 

Diet  .it ion, 

liquity  will    never  per  lit   aere   fo  m  to    nide  t  le  true 
bearings  of   a  transaction, 

T';io   recognition,  of  t   e   ori.iciple   o-   t  .is  -iaK:irn  in 
courts  of   law  is  o:.:>e  of  tne  results  of    t  le  r;radual    adoption  by 
t  lese  courts  of  equitable   principles.      I   saould  surest   t  lat 
t-jis     ■'a,xi''^.i  and  tie   one    last  vaenticned    .lave  betv/eon   t  i&n.  an 
inseparable  connection.      To   use  tie  words   of  fcnero;/ ,    "It    is   on- 
ly by   loolziiij   at   z  le   intent    rat  .er  taan  t.ie  form  t  oat    equity 
is   able  to    treat  t  lat    as   done  7/nio  i  in  ^ood  conscience  oa;^.it 
to   be  done.  "      Tnis     'X'dm  and  t:.ie   last   are   inseparably   connected 
SlVA   are    always   applied  to-;:ot"ier. 

Poieroy's  Equity    Jurisprudeixe  par.    378. 

I   -.^dll   .r-ive  you    some   illustrations   of   t be   appli- 
cation of    tie  principle   of   t  lis  n.:!.;:ir.u      It   is  only   possible 
t  Tou  ;;:  t  16   application  of  "^  le   principles   of   t  us     ::i^ci.n  and 
t  ..e   one    last  ..lentione.'.  to   "lave  property    in   equity.      In   law  title 
to   propertj,^    can  onV    exist    in  a  person  by  raenns  of  acts   and 
for  .3,      At   tie   r)resent   ti.ie   real  property    is   transferred  and  a  ti- 
tle creatai  t  i^t   is   reco,;nized  in  la'.T,   by  aearis   of   t"ie  deed,    si:ined, 
sealed   ?uid  delivered,      "^y  t'le  perfonaance  of   t'nose    external   acts 
pere.nptoriV    required  by   law  a  title   is   developed  in  t  le  grantee 
t'lat    is   tie  only   txtle   reco'"iiized  at   law,      Tbis   is   so  even  if 
it   is   tie  i.  tention  of  bof.i  parties   t  lat    tne   estate   sball  be 


iri.  iiqiir^Y  jlrisprud  'tc;",  jr.  5i. 


ielcl  "by   one  Tor  tie  lienor  it   oi    anot  ler,      II    t-xe  deed  is   r.bsoiute 
on  its  f.ace  "le    ..■.o.'.vS   it   Tor    i±s  own  Denof  it  ^   a:Td  svide.ice  could 
not,  ":.3   i.itroduce:'.  in    r.  court  o.J    .l:.v/  to    siow  "c  l^X    tie  parties 
intendO'l   1 1  .,t    iQ   sXiould    lold  it   for   tie   cenorit  of   another.      But 
t;ds   is  veiy   different   in  a  court  of   equity,      "Tiquity   in  obedience 
to    t  I'i  principle   of  t  lis   :n?--:in,   will  brusi  aside   t  :.e   form     and 
lool:  at    ti3  intent   of   tie  tr  .r.s:;.ction.        And  if   it   appears   t  nat 
tne  intention  of   tie  patties  wis   t    at   one   s.iould  'lold  for  tne 
benefit   of   anotier,    it   v/ill  vest   t  .3   equitable   title   in  tie 

beneficiary. 

Dictation. 

It   i?   only  by   disre;- -.rdin-.,   f  o  nn  s:o.d  considering    tie 
iritention  o'    c  lo  p.irties  t  lat    i^iro  ,:ierty    in  equity    is   possi- 
ble  i,"i    laiXv'   cases. 

Poxieroy  ^q.    Juris.    380. 

I  can  illustrate  t  le   principle  of  t_iis  ..laicii'i  also  by 
referriii,  to    tie  doctrine  of  penalties   and  forfeituroo,    tne 
-attitudo  w.iic  \  equity   toJies  towards  penalties   a.nd  forfeitures. 
A  penalty   is   a  clause   i.itroduced  in  a.;  instrument   t  jat    provides 
that   1 10  party    e^:ecutin..j  t  le   instru.nent   in  case   .le  fails   to 
perforn  certain  a::ree;ients   in  t  ne  ijiStruinent ,    imposes  upon    lin 
t  :e  pa/^'.ient   of  a  certain,  sun  of  idon.ey.      A  forfeiture   is   a 
clause   inserted  in  an  instrur-iant  by  wnicn  he  a^-reos  to   for- 
feit  cert.ain  property   interest   in  case    le  fails  to   perform  cer- 
tain a-^- reeraents   in  tie   instrunent.      Penalties  we  usually   find 
in  instruiaent   in  t  ^e    nature  of  bonds.      A  penalty    is  usually   lar~er 
t  lan  t  le   aaount   involved  in  t  je  tr;insact  ion,   usually  twice   as 
l?,r^je  a,s   tie  a^iount.      In  form  t  le  pa.rty   o^-^rees   to  pay   t  le  penr- 
alty   if     'S  fails  to  Ireep  fie  covenants   in  tie  instrument   and 
at   law    io  -vvould  be  compelled  to  pay   t  le  penalty.      That    is   according 
to    strict   adierence  to    le:al  principles:    but   eajuitable  principles 
have  had  their  effect  upon  law  cjurts   and  in  modem  ti.es  tno 
rules  of   law  are  not    so    strictly   applied  in  regard  to   penalties 
as   fonerly,      A  court  of   equily   looks  at    tne   intention  of   the 
parxies   in   constrain-;   fan     insti-uaent,      Yfiat   is   the   intent   of 
t  le  parties   in  insertin;;    a  pona2ty   in  an  instrument?     Their  in- 
tention is    t  .at   tie  penalty   may  servo   as   a  security    for  the 
performance  of   t.ie  obli.2:atians   of   the   instruiaent.      If  tie  ob- 
lijation  is   not   perforied  and  da.na";es   are  an  adequate  compen- 
sation to  tie  other  party,    aiid  da/.'ia,3es   are  paid,    the  full   effect 
of   the   security    is   obtainedo      If  t  -.e   party  who   has  tnus   obligated 
hi  iself    is  v/illin-;   to    ca.i  ■je.isate   in  dama^jes   tie  ot  ler  party, 
v/ien  tie  case      is   one   fiat   can  be   settled  by   daad^^es,    in  that 
case   a  pen.ihty  will   not  be  enforced  in  equity. 

Dictation, 

Another  application  of  tne  principle  of  this  .ia.<.im 
is  seen  in  the  doctrine  re,;jardin;3  penalties  and  forfeit- 
ures.     Tquiiy    looks   at    tie   intent  of   tie   parties   in   insert- 


XI.  ]<:q,uity  juris.'PRUd'^^^ce,  jr.  52. 

inf.:  t  le  penr.lty   oi"  ronTeiture,      T'le  real   intont   is   t  ::^it    it 
may   operate   as  a  security o      Relief  v/ill  never  "be  ^iiven  upon 
a  penalty'-   or  forfeiture  v/ierever   tie  actual  daiigc^s   sus- 
tained can  be   adequately   co::ipensated.      'iiquity  will   never 
enforce  a   oenalty   or  forfeiture. 

Po  loroy    ^:q.    Juris.    Vol.    1,    331. 
34     !icao    138. 
Anot  ler   illustration  oJ  tie  application  of  tjis 
maxim  is   found  in  tne  nort  ;a';^or' s   equity   of    redemotion.      i^iccord- 
in/j  to   strict   form  if    fae  mortc^acor  fails   to   -poy  upon  t'ae  day 
stipulated..       t  :!fi   est.7,te  "iDecOuies   aosolute   in  t  le  aiort/;.^eo,      Tiie 
Conimon  la'.v  nort-jai^-e   is   an  estate   in  fee   sinple  upon  t'oB   -lappen- 
in^   of   a  condition   sul)sequent.      After  failure  to   perforra  tie 
condition  of   tlic  'Tiort^cV^je,    at   law  t^e  /aort^j^ijor  'j.ad   no   furt  ler 
ri;:  it   in   fao   est-.te,   "but   a  court  of   equity   furnisaes.  relief 

under  suca  circu-.istavices.      It  will   brusa  aside   t.ie  mere  forni  of 
t  j.e  instni'.-ient   and   lool:  to   tae   intent   of  t  jb  parties,      TT'aat 
was   t':.e   intent?      It  was   tjat  t'.ie  inort;2^ioe   siiould  operate   as  a 
security   for   tie  payuient   of  t.xe  debt.      T^quity   sa^'s  t  lat   tae 
mort-a^or  s  lall    :ave  an  opportunity  wit  ain  a  reasonable  tine 
to    redeeiii  nis   property   by     payment   of   tae   debt   for  waica  tae 
mort -"v-re  v;as  :-;iven. 

Dictation. 
Anot  ler  illustration  of   tae   application  of  t.ie  prin- 
ciple of   t_iis  na.a.:  1  is   found  in  tae  uiort,;::a,~o  r' s   3quity   Jf 
Redemption. 

Pomeroy    l]q.    Juris,    par,    382. 
Per  japs   a  vjore   sti-ilcinr   illustration  of  t  le  principle 
of   fois   iiT^ii  i  is   found  in  tae  principle  toat   equity  will    regard 
a.i  absolute  deed  as  a  lao rt,2" -\_; e  w'aere   it   is   t  le  intention  of 
tne   parties  t  lat   it    saould  operate  as   a  mort\;a:ie.      If   I   coue  to 
you   aid  wis  a  to   borrow   so  le  -.loney   and   3:3j   t  lat   I  will  give  you 
a;i    security   for  t  ^t   loan  a  deed  to    a  certain  lot.      Tae   a^-reement 
t'oat  you  are   to   aold  t  le  title   to    fiiat    lot   as   security   for  tae 
payment   of   tie  loaji   at   some  future  time,      TVie  deed  on  its  face 
is   an  absolute  one   and   at   Ic.vr  you  would  be  tae   absolute   owner 
of   tie  lot.      Evidence  v/ould  not  be  adjaitted  to    s'x)w  t  .lat   a  deed 
absolute  upon  its  face  v/as  to   be   rOj^-arded  as   a  mort'jage  between 
t'.ie   parties.,      Courts   of   law  will    reco-^niae   at    tae  present  time 
taat   a  deed  absolute   on  its   face  uaj   be   aeld  to  be  a  aortf^age 
between  tae    Parties  but   it  will   not   enforce   t:ie   deed  as   a 
mo  rt.'- a';j  e ,    tie/   le?vve   t  -.at  to    a  court   of   equity.      A  court   of 
equity-   in  obeiie-.Tce  to  tae  principle   of   tois  majcim  will   receive 
evidence  s'aowin"C   tiat   tie    real  transaction  was   between  tae 
parties  v/ifaout   respect   to    tie  fon.i  of  tie  instruivient ,    if   tae 
parties   intended  t  le  deed  saould  b©  only   a  security  for  a 
deed  equi^ty  will   so   rerjard  it  and   so    enforce   it.      In  a  court   of 
equity   a  '-•rantee  in  a  deed  of   taat   l:ind  must  ^o  t'arou.£;a   a  pro- 
ceodin;;    slnilar  to   a  foreclosure  proceedin^   before   tae   ab- 
solute title  wiljL  voat   in  tae  ;frxi-itee,      Tae   title  must   be  based 
upon  a  decree  of   t  le  court   if  it   is  to  be  one  taat  will  sta.id  both 


XI.  EqjITY   JURISi'ilUL'iiiXI'J,    JR.  53. 

in  law  and   equity,      Tae    reason  'bexruf,   tljat   tie    i.^strwiont    is 
really,''   not   a  deed  ""out   a  uiort  ;  v.:e. 

Dictation. 
Anot  ler   illustration  is   found  in   tue  aoldirr:   of 
courts  of  equity    in  re,ard  to    an  absolute  deed  t;.iat    is   in- 
tended ly    tie  partiGG   to  "oe   a  laort^- a,-;ie.      In  equity  tois 
intent  iTi'sy    olv/oys  Le   s  jovm  and  t ;ae  absolute   deed, 

by   a  decree   of  tae  court  turned  into   a  aiort^-a^e, 
Stincifield  vs.     [illilcen.    (Illist r:\tive  c3ls   46) 
(71  ?Iaine   567) 
Tae    elevent  a  .;ia>:i a  is   in  f.ie   follov/inj;   foru: 

11.      iqj^lTI   l::IPUT-^S  A]:T   IlITi^TvlT   TO   FULFILL  AV.'  OELIOATION. 

Dictation. 
T ae  ineanin,j   of   t  le  iiiaxin  is  tais,   %va.e never  a 
duty  rr;sts  upon  a  party   and  he   does   sonetiiLn-     w.-iici  may  be 
cor.stnied  as   a  perror-.Arice   of   toat  duty,    equity  -.vill  presume 
fiat   t.ie   act  was   done  wit.i  tie   intent  to   perfona  fie   duty. 
As   an  illustration  let  us   tal:e  tie  case  of  property 
purc'i'-'sed  'qy    one   occupyin;^   a  trust   or  fiduciary    relations-iip 
wifi  trust  funds,      T-^e  x3.ouQy  belongs  to   tie  trust   estate,    tie 
parcy   purcaasin;;   ta-es   title  in  "li  iself  or   in.  -lis  own  nane.      An 
exa^P-pls  of  t'lis   is   an  agent  w-io   pure  la.jes   land  wit  i  no-:ey  bolon;;- 
in;   to  "-lis    principal   and  ta'res  tie   title   in  'lis   ov^^n  name.      So   far 
as  t  le   deed  is  concerned  ae   is   ab;iolute  owner  of    tae  property, 
J^quity  will   loo]:  upon  a   transaction  of   tiat   l:ind  in  tais  way, 
in  obedience  to   t  .le  principle   of  tuis    .i.a-<ix  it  will   assune 
t  lat    t  le  a^ent    i'ltended  to   do    lis   duty,      7{:ia.t  was  ais    duty  under 
tie  circu-^iistances?        It  was   to  purc:iase   t  lat    land  and  nold  tie 
title   for  tie  benefit   of    lis  principal.      And   equity   s-.iys  ae 
does  so   nold   it.      Equity   under  sue  i  circUMstaiXes  creates   a 
trust,    waicn  is   called   a  result  in.'j  trust    in  favor  of   fie  prin- 
cipa,l.      A  trust    results    in  favor  of   trie  principal  w.io   furnis  led 
tie  consideration,      Tne  principle   riay  be   stated   in  a  broader  way, 
a  trust      always   results,    in  tjie  absence  of   statutes   cnan;jin:;   tie 
law,    in  favor  of  tie  person  wao    nas   furnisned  t  ae  consideration. 
If  you  can  find  tae  person  wao   furnisied  t  le  considera.tion  in 
a  tra,nsaction,  you  nave  found  fae  person  wio   is    entitled  to 

tie   equitable   ixitsrest. 

Dictation. 
Illustration:      A  purciase  by  one   actinc    in  a  trust 
capacity,    li^:e   an  a^^ent,    of   property   wit  a  trust   funds, 
fie  person  t.aJrinc:   the  title  absolutely   in  niriself.      Equity 
will   assume   t  lat  ae  holds   t  ae  property   for  tie  benefit   of 
his   principal,      A  resulting   trust   is   created. 

:icLarren  vs.    Brev7er,    (Illus,    cases  oo-je   48) 

(51  -le.    40  2) 
It    Tust   always  appear,    aowever,    directly   and 
definitely   t  lat   trust   funds  have  been  actually  used  in  t ae 


itSI 


-jSJ- 


W: 


) 


•^^"  '-* 


i 


XI.  EqpITY  JURIbPRUD:>lCS,    JR.  54. 

pure  lase  of  tlie  propertyo 

perris  vb.   Van  Vec'iten  (Illuso    cases  pa^e  453) 
(73  il.Y.    113) 
T'le   twelfta  raa:-dra  is   tius: 

12:      rj'^ui:^!    ACTS    I'  PTRSO^TA.I   'VI'TD  HOT    IlJ  ROiI. 

T'-ie  principle   of   tjis  mai-ciiM  was   adopted  tjy'  the 
C'lancellors    in  tie   infa^icy   of  tie   equity   syste.n.      It  was   a  cardinal 
principle  of   equity   fiat    it   s'nuld  act   in  personam  and  not   in 
rem.      T'.iat   it   s'.iould  tare  "aold  of  tue  litifjant  and  msilce  Liim     do 
wliat    le  0u3.it  to  dOc      Tlie  decree  of   equity  v/as  'originally 

iiiost   empiatically   a  personal  decree.      If  t  ae  person   refused   to  obey 
tlxe   decree  of  t'.ie  court,    t  le   coiapulsory    process   of  t-ie  court 
was  "brou":  it   to  "bear  upon  'aL-.i,    attaciment  was   issued  against  hiiii 
and  lie  was  'brou'-'.it   into    court   and  asked  to   pur^e  "ainiself  of'con- 
teropt   in  refusin;;  to   obey  tie   decree   of  tae  court.      By  a   lor^; 
strin-;  of   t'aese   processes  a  personal  decree  was   in  most   cases 
effective,   Isrut  t  iere  were  mary  cases  waere   a  personal  decree 
could  not  "be  carried  out   on  account    of  tae  obstinacy  of  tie 
liti^;a^t,      Under  suci  circumstaixes  a  court   of    equity  was  powerless. 
A  decree   in  equity  coiold  not   operate  purely   as   a  transfer,    a 
decree   siiiply  by   its  own  force  could   not  vest  the   title  to  pro- 
perty   in  a  certain  person.      If  a  court   of  equity   failed  to  laalro 
one  party  ;ial:e  a  comAeyance  of   t  10   title   to    another  it   coiild 
not  ixaJre  the   decree   stund  in  place   of   a  conveyance,    if   a  defen- 
dant   refused  to   obey   t-ie  com.aa,nd  of   the  court    it  could  only   compel 
obedience  through  its  compulsory   process.      But    in  the  United  States 
this  personal  c  laracter  of  an  equity   decree   iias  been  f^reatly 
changed  by  statute.      There   aas  been  tv/o  kinds  of  lej2;isaation  up- 
on t  lis  subject.      The   first   provides    t.iat    the  decree  itself  or  a 
duly   certified  copy    thereof   du]y    recorded  whall  answer  as   a  trans- 
fer,     Tae   second  kind  of    lejislation  on   tae   subject   provides 
for  an   execution  of   the  decree  by   the  ilaster  in  Chancery   or  other 
officer  of   the  court   of   equity,   with  ti3  sa.ie   effect    as   if  made 
by   the  defei^,d..t-rt   himselfo      In  accordance  with  the  decree  the 
Circuit  Court  Coraiissioner  or  "laster  of  Chancery  i;iakes   a  sale  of 
the  property    and  :nal:es    a  deed  to    the  purcaaser.      The   statutoty    changes 
t  iat   aave  been  .aade   in   re;;;ard  to   the  principle   involved     in  this 
maxim,    as    a  matter  of    fact  tends  to  maize   equity   act   in  rem  instead 
01    in  persona.'.!. 

Dictation. 
The  principle  of  this  maicim  was   strotv^ly   adhered 
to   duriii  ■   t  12   early  history   of  the  equity   court.      Equity 
could  only   ace    in  persona.a.      It  was   a  fundamental  principle 
t'lat   a  court   of   equity  iiad  autaority  to  compel   a  person  to 
do   waat    in  equity    and  rood  conscience  he  oui^^'ot   to  do.      The 
personal   decree  was    eniorced  if  necessary   thrDUp:h  the   corn** 
pulsory  processes   of  the  court.      In  the  United  States  tais 
has  been  cha/^jed  by   statutes  of  two  kinds.      First,    statutes 
f-iat  provide  t.iat  tae   decree  may  operate  as   a  conveyance. 
First  Mich.    Compiled  Laws   1897    (465) 


XI.  EQUITY  JUPvISP.^UD~J.TC2,    JR.  55. 

3econ:'L,    St.atutes   t  lat  provide  for  .i  co:Tvefyaace  by 
so  ,".0   of-'iccr  of   tie   court, 

?o:aGroy's  "^c.    Vol.    3  par.    1317    aiid  noto    3. 
Alt  lou    i.  t  ;■  ai  3   fund  ^--je  nt  al   do  c t  ri j  i e   t  .uxt   e  qui  ty 
acts   in  persoaat  .las  'been  li  .litod  'jy   statute,  you  3  lould 
still   rG-.aei*er  t  .\at    f.iis   -persoii^l  c  :araGter  of  a  decree   in  equity 
otill  reviai'-.s  Wiere   it    aas     not  "been  c  .laujed  "by   statute   aiid  wiere- 
ever  sue  i  a  c  in:T;^e  would  be   iupossible,    for  e^^aijple  a  decree 
restraini'x:   a  defendant   fro  1  doin_.    a  certain  tain;;   necessarily 
..aust   be   a  -personal  decree.        It   is    still  personal  wiere   tie 
subjec".  nattor  of    tie  decree   is  v/it  lout   t  le    iurisdiction  of  tie 
court,,  t  :e  parties  boi.i  ,  v/itnin  t;ie   jurisdiction.      Suppose   for 
exa^uple   I   own  land   in  O'lio    and  I   contract  v/if;  you  to    sell  and 
convey  you  t  le   piece  of   land  and  I  fail  to   do   so   and  you  r;o   into 
a  court   of   equity   in  tie    state  of    lie  xi'jan  and  .';Qt   a  decree  for 
t  .^6  specific  perfo  nance   of   tit   contract.      In  -lie 'ol:;  an  by   force  oJ 
statute  t';..e  decree  •/ould  operate   as   a  conveyance  of   t ne  pro- 
perty.     But    if   I    record    tie   decree   in  0  lio  ,    it   is  a  :iero   nullity. 
Under   t  lese  circu..ist:).nces   it  would  be   a  personal  decree,    it  is 
not   self   e.cecutii:.      So  w  lenever   tie  subject   natter  of   t:.xe  contro- 
versy  is   outside   tie   jurisdiction,    t  le   decree   even  wit  1  tiese 
statutes    e:'d3tin''i,    is   still  a  personal  decree. 

Dictation. 
Tie   decree    in  very  na.ny  cases  still   remains   a  persoioal 
one  as  for  enai.iple  wiere  t  le   subject   natter  of   toe    contro- 
versy  is   vdt  iout    i:  :e   jurisdiction  of   t  j.e  court,    tie   parties 
bei:i  ;  witiin^ie  jurisdiction  oX    tne  court, 

ClMients   vs.    Tillman   (Illus.    cases   pao>'6   50) 
5   S.E,    194;    79   Ga.    451) 
Hart   vs.    Sansom  (Illus.    cases   pa^e   52) 
(110  U.S.    151) 
Povieroy    ^q.    par.    134-135. 


•oOo 

Oct.    act  1,    190  2. 


II.  EPTJITY  .JUraSPRUlDTilATCE .    -JR.  .^^A 

LT^CTUPr  :ai. 

The   next    and   Ifist  r.iaxirr:  is   u,~ur.lly   tiivcn   in  the 
follov/iniV    fonn: 

13:    EQUITY  ACTS    SPEC  I  iTIC  ALLY  /.IIL  BY  V'AY   0?   COIIPErTSATION. 

Tlie   principle    of   this  mt-jcim  runs   through  the   entire 
system  of   remedial   equity.      Iuqui"cy   very   rarely  grants  relief 
in  the   form  of   damages   for  an   injury.      Under   cert;  in  circuias- 
tances   as   I   ha^'e   alrea,dy      su:;^e5ted  a  court    of   equity  after 
it   has    once    ohtained  jurisdiction   of   a   case  niay  retain  juris- 
diction  of   the   case   anc    ~ive   compensatory  damages  v;here 
equity  and  justice   require   that    a   judjnent   for  drxiages  he 
given,    equity   under  thos-n    circumstances   does  not    act    sj^ecif- 
icolly.    The    aim   of   equity    is    tc    determine   and  to   declare 
estates,    interests    e.ncl   rights   of   litifant   parties   and   to 
compel  parties   to   observe   them,    and   to   e;ivc   parties  v/hat 
they  are    entitled  to   in   specie    rather  than  dajnages  by  v,ray 
of   compensation.      Equity   aims   to   pre\'ent    injuries   that   are 
threatened  and   to   put    a   stop   to    injuries   that   are   "beinr;    in- 
flicted and   it   works   out    its    remedy  not   "by  way   of   compensat- 
ion but   by   acting   specifically.      Herein  we    discover   a   char- 
acteristic  difference   between   courts    of   lav;   and   courts    of 
equity,      -->    court    of   lav;  culv/ays   .^ives    relief  by   compensation. 
If   a  pf'rty   fails   to    carry   out    j-    contract,    a  court    of   law 
will  C'^va    rrmaces   for  the   broach,    v'hile    in  a  court    of  equit; 
if  lie   fails    to   carry   cut   his    contract,    equity  will   specifica.lly 
enforce    the  performance    of   the    contract. 

"^  ic  tat  ion. 
The   aim  o'f   a   court    of   ec;.ity,    as   a   rule,    is   to   declare 
rights   anc    to   com.pel  parties   tc    observe   them.    The    equity 
court    acts    specifically    in   re   ard   to   the    subject   matter   of 
the   controversy   anc    rarely  gives   dcjnages   as   the  main   relief 
in  a   cause   5f   action.    If   the    court   has    once    obtained  juris- 
diction  cf  n,  matter   it  t:ay   retain  the    case    if  equity   re- 
quire   it    :nC.  give    (..-:-.ria,^es,    but    to  give   dcanages   is   not    a 
primary  function   of  the   equity  tribunal. 

Pomeroy  Eq,    J,    ''ol.    1.    p::r.    170   r  nd  par.    4.9. 
Tisphc-ms^  Erincij  l.-^s    of  IJquit^'  -p''--^ *    "^6  • 
Adams   vs     llessenger(lllust .    cases  "oage    54) 

(17   /.E.    491;    147   'tass.    185) 
You  v/ill  find   in   that   case    specific   perform.ance 
of   a   contract    to  convey  personalty   sought   at   the   hands   of   the 
court.    It   was    objected   on  the  part    of   the   defendant   who   demurred 
to  the  bill  that   a  court    of   equity   cfuinot    specifically   enforce 
a  contract    for   the    conveyance    of  personalty.    It    is  the   contention 
of  the   defendant    in  that   case   that    the    complainant   had  a   full  ana 
complete    remedy  at    lav;  by  a   suit    for  dam.ages.   Defendants   urged 
in   support    of   their   demurrer  the  principle   em.bodied   in  the  raaximi, 
equity  will  not   grant    relief  v/here   there    is   an   adequate   relief   in 


XII.  EOUITY  JURISPP^UDEHGE.  JR.  S  7 

an  action  at  le.w.   Contracts  which  relate  to  realty  can  necessarly 
only  he  satisfied  hy  a  conveyance  of  the  particular  estate  con- 
tracted for,  while  those  v/hich  relate  to  personalty  ar"  of+en 
fully  satisfied  hy  damages  which  enable  the  party  injured  to 
obtain  elsewhere  in  the  market  precisely  similiar  property  to 
that  which  he  had  agreed  to  purchase,  so  it  is  net  necessary  to 
come  into  a  court  of  equity  in  order  to  get  relief  for  a  breach 
of  a  contract  to  convey  personalty.  That  is  the  general  rule,  but 
the  court  held  that  the  general  rule  did  not  apply  in  this  partic- 
ular case.  If  an  articl-e  of  personalty  is  one  of  rarity,  if  it 
is  a  work  of  art,  or  a  heirloom,  somethin-i  that  is  not  purchaseable 
in  the  general  m  rket ,  or  bank,  raiway,  or  other  corporation 
stock  which  is  limited  in  a:nount  e.nd  not  ordin£,rily  to  be  obtained 
on  the  open  market,  or  if  the  article  is  one  protected  by  patent 
and  the  manafacture  of  the  article  is  limited,  then  a  court  of 
equity  will  specifically  enforce  the  contract  for  the  conveya,nce 
of  such  511  article  of  personalty,  t^nd  the  particular  article 
that  was  the  subject  matter  of  this  contract  was  one  that  was 
not  easily  -'urchased  upon  the  market  and  the  court  held  the  contract 
should  be  enforced, 

I  have  deA'Oted  considerable  to  time  to  the  examin- 
ation of  these  general  mxaxims  anc'  to  the  discussion  of  the 
principles  involved  in  the  same.  The  general  maxims  of  equity 
are  of  the  highest  importance,  they  are  broad,  com;,  rehcnsive  sud 
fundamental,  they  permeate  all  parts  of  the  equity  system  c-.nd. 
are  of  constant  applic- tion  in  equity  tribunals.  By  getting  a 
thorough  understanding  of  these  maxims  now  ;'ou  v/ill  get  a  com- 
prehensive notion  of  the  equity  system  thc^t  '111  aid  you  in  your 
further  investigations  of  the  subject.  Upon  the  importance  of 
these  general  ma::ims  of  equity  see, 

■^omeroy  "^'q.  Juris,  ^■''o.  1  par.  130. 
We  will  nov/  take  up  thD  tiscussion  of  the  second 
division  of  the  subject,  namely,  EQUITAPLE  TITLZ^G.  Som^^times  in- 
stead of   equitable  titles,  the  term  property  in  equity  is  used, 
but  the  tenns  are  synonynous.   Title  or  property  in  equity  mc'.y 
exist  in  lands  ar  chattels.  In   equitable  title  is  a  right  in  or 
to  or   over  subject  matter  recognized  and  protected  by  equity. 

notation. 
E0UITA5LE  TITU^  IS  A  TITLE  RECOalTIZED?  PROTECTED  /JID  EirEORCED 
OITLY  III  P   COURT  0-'  EQUITY.  It  should  be  distinguished  from 
equitable  rights  v/hich  are  simply  rights  to  some  one  of  the 
equitable  rem.edies. 

■'.o'henever  there  is  equitable  property  whether  it 
be  in  personalty  or  in  realty  there  must  be  two  simultc;.neous 
ownerships  present.   The  original  title  to  the  property  imder 
such  circumstances  is  decomposed  and  separated  into  Its  tv/o 
■constituent  elements,  nam.ely,  equita-le  and  legal  title.  You^ 
cannot  have  or  conceive  of  equitable  property  without  there  is 
an  outstanding  legal  title  in  some  one  else.  If  the  two  titles 
center  in  one  and  the  same  person  a  merger  takes  plcce  and  the 
equitable  title  is  swallowed  up  in  the  legal  title.   That  is  the 
general  rule,  but  under  certain  circumstances  this  rule  is  not 
enforced  .  A  court  of  equity  may  keep  the  legal  anc'  equitable 


XII.  r.omPY  jTj:is?-..u:::iiGE.  jk.  j)^ 

titles    separate    even   though  the  t    o   are   centered  in   one   person 
in   order   that   justice   an      equity  racy  be    done,    cijic    that   the 
intentions   of   the  parties  nay  be   carried   out.   ~ut   in   the   ab- 
sence   of   any  intention   of   the  pc.rties   that   the    titles   should  - 
remain   separate,    vA'\^<='n  the   two   titles   are   centered  in   one   per- 
son the   t\-c   titles  will  become  merged  and  only  the    legal  title 
remain. 

J -ictationo 
In   every   case    of  equiti.ble   property  we  must   have   tv;o 
simult-neous    o'.Mierships,    usually   in  different   persons, 
namely   the    le._,al   ov/nership   and   the    equitable    ownership.   Th 
original  title    is   decomposed  and   separated   into      its   cons- 
tituent   elements.    The   two   titles  must    as   a  rule  be    in 
different   persons,    and   if   the   tv/o   titles   center   in   the 
seme   person  there    is   a  merger   and  the    legal  title    only 
remains,    but   v/here   equity   requires    it    the    titles  may  be   kept 
separate   by   a   court    of   equity   even   though  cantered    in  the 
Seme  person.   Under   seme    circumstances   this  rnfy   occur   in 
order  to   carry    out    the    intention   of   the  parties. 
Pcmeroy's  Eq.    Juris,   '.''ol,    2  par.    788. 
ICeep    in  mind  this    sepa.raticn   of  the   tv/o   estates   as 
a  characteristic   of   equitable   estates    or   equita.ble   property.lt 
may  be   the    intention   of   the  parties   that   the   equitt.ble   title 
be  permr'nently   separated  and  this    is   fundamental   as  being  a 
characteristic   of   one   kind   of  title    or   trust.    For   example    if 
property   is   conveyed  to  A  and  by   the    terms   of   the    conveyance   A 
is  bound  to  hold   the  property  for   the   benefit    of  E  for   a   certa.in 
time    during  his    life,    the   legal  title    is    in  A  and  the   equitable 
title    is    in  B   ?.nd   it    is   the   express    intention   of   the  parties 
that    they  be   permanently   separated.    There    is  no    element    of 
hostility  between  the    o'"ner   of   the    legal   and   the    ov/ner   of   the 
eq-'itable   title.    That    notion   is   the   basis    of   one   division   or 
class    of   trusts,    namely   expressed   trusts.      All   express   trust 
are    due   to   the   notion   of   the  permanent    separation   of   the    legal 
and  equitable    estates    or  titles.      But    there    are    cases   y;here 
equity  v/ill  recognize   and   raise    equitable   titles   where   the 
separation   of   the   tvv'O   titles   are   not   perm.anent   but    is   transitory 
in   its   nature,   ■''here   there   is   an   element    of  hostility  between 
the    legal  and    equitable    ov/ners   of   the    title,      ''''here    it    is   the 
intention   of   the    owner   of   the    equitable    title   to  put    an   end  to 
the    separation   of   the   titles   and   to   secure   the    legal  title   as 
soon  o.s  possible  c.    The    ralation   is    antagonistic    and  net   permc'Jient 
but   transitory.   And   these   characteristics   are   found  underlying 
another   class    of  trust   knovm   as   resulting   or   constructive   trusts, 
trusts   t:Tat   the    lav;  implies   from  all   the    surrounding   circumstcaices. 
It    is  not    e.  permanent   trust   but    one   raised  for  the   purpose    of 
aoing  equity   and  justice   between  the  parties.      I   gave   you  vn 
illustration    in  the    last    lecture    of   an  jigent   purch;-  sing   land 
v;ith  his  principal's  m.oney  and   takin      the   title    in  his    ov/n  nj.jne. 
The   lav;   v.lll  make   the   a^jent   a   trustee   for    the   benefit    of  his 
principal,    the    one   v>rho   furnished   the  purchase  money,    that    is 
called   a  resulting   trust   and   is  based  upon  the  maxim  I    gave   you 
yesterc'ay  morning.      But    suppose    the   agent    in  disobedience   to 
the   directions    of  his  principal  purchases   land  v/ith  his   principal's 
money  ajid  takes   title    in  his    ot.ti  name   for  the  purpose    of   cheat- 
ing  anc    defrauding  his  principal.   Equity  will   say  tinder   those 
circumstances,    you  have   the    legal  title   but   you  have   acquired 
it    through  fraud   and  you   shall  hold   it    in   trust   for  the   benefit 
of   your  principal.   That    is  knov.Ti   as   a   constructive   trust.    Vhene- 
ever  fraud  enters   into   a  transaction   and  by  means   of   the   fraud 


ZII.  r,OUITY  JTJPISPRUjIITCE.  JE.  ■:  ■  6'"? 

the  le  ,;il  title  has  ~ot  into  the  hands  of  :■■..   person  -./ho  h.  s  no 
ri^jht  to  hold  it,  equity  raises  a  constructive  trust  in  favor 
of  the  ri,vrty  v.'ho  paid  the  purchase  money  and  on  account  of  the 
f r.  ud  it  is  called  a  constructive  trust.   The   separation  is 
not  a  permanent  one  and  it  is  not  understood  "bet\-veen  the 
parties  or  hy  the  court  tha.t  it  is  to  he  permanent.  The  object 
of  the  party  "oin^  into  a  cou^t  of  equity  is  not  to  continue  thp 
relation  hut  to  put  an  end   to  it  hy  compellinc  the  party  -ho 
lu.s  the  legal  title  to  convey  it  to  him  v/ho  holds  the  equitsole 
title. 

Met  at  ion. 
This  separation  of  the  le£i,al  and  equitahle  titles 
may  he  perr-ianent  in  its  n:  ture .  It  ma.y  be  in  accordance 
with  the  agreement  of  the  parties  there  bein,\  no  hostility 
bet?/een  them.  This  is  >:he  case  in  all  expressed  trusts.  It 
is  in  accordance  v/ith  the  c.i\'r.3£inent  or  instrument  'oy   v;hich 
the  trust  is  created  that  the  relation  shall  be  to  a  cert- 
ain extent  a  permanent  one.  But  the  relation  may  be  a  tem- 
porary one,  a.nd  there  may  be  an  element  of  hostilit""  in 
it.  This  iv.    alv/ays  the  case  where  the  court  raises  a  trust 
for  the  ;:rar  ose  of  working  out  equity  and  justice  v/here 
injustice  as  resultea  from  friud  or  unfair  dealings.  In 
such  a  case  the  beneficial  owner  that  has  been  wrongfully 
de  rauded  of  his  legal  title  seeks  to  -  ut  ein   end  to  the 
trust  relation  by  compelling  a  conveyance  to  himself  by 
the  wrong  doer  of  the  legal  title.  All  constructive  trusts 
are  of  this  kind. 

'omeroy  Vol.  1,  par.  146-147-145. 

"    "'ol.    2  p;  r.    1030-1040. 
I   will  nov/  discuss   the   nature   and  character   of 
the    separate   equitable   estcde.      It   would  be   possible   to   treat 
all   equitable    estates   v/ithin   the    single    subject    of   trusts.      Trusts 
are    at   the   foundation   of   all   equitable    estates   and   interests. 
As   all  kinds   of   equitable  property   is    so   closely  allied   and 
connected   •  ith  trusts   it    is  Y;ell   to    learn  and   to  kncv;  som.ething 
of   the    origin  and   introduction   of  trusts    into    equity.      It    is 
not   knovm   exactly  when  the   notion   of   of   the    separation   of   the 
legal  and   equitable    title   first   appeared   in  equity,    ■■hen   it 
first   appeared   the   n^^me   trust   was   not    given  to   it,    it  was   called 
a  use.    It   was  not   known   as   a   trust   until  after   the  passage    in 
the   reign   of  Henry  ¥111    of   a   statute   known  as    the      Strtute    of 
Uses  and   after  the    construction   the   courts  put   upon   that    sta.tutQ 
After   that   tine   the    equitable    interest   was   described  as   a.  trust, 
before   t^ic-.t   it   was   knovm  as   a   use.      It    is   ahnost    impossible 
for  us   to  tell  just   when  the   notion   of   double   ovmership   first 
came    into   the   T^nglish  law  but    it    is   safe   to   say   as   early   8.s 
the   reign   of  j]dward   II. 

Dictation. 
Uses   are    trust    C£arie    into   the   '/'Inglish   lavir  probably   as 
early   as   t'-:e    reign   of  .'ixlward  111(1337-1377).    Uses  were 
used  and    resorted  to   foi-    t:ie   purposes    of   fraud.    The   Clergy 


XII.  EQUITY  JURISPRUT^ENCE.    JE.  .       .  L  (> 

resorted  to   them  for  the   purpose    of   esc^riinr;   the   s/'fect 
of   the   Statute    of  "crtm?in.    T]T.e    Ic'ity  to   defraud  creditors 
and   to   escc.pe   from  feudal    Durdens  hecause  many   of   the 
feucc.l   obligrtions   did  not    attach  to   ea_uitgble    interests    , 
"'uring   the   roign   of  Henry  V.    the   greater  part    of   the    land 
of  England  'vas  held    in  this   way. 

Spence's  Hcuity   Jurisdiction  Vol.    1  pages  39-44. 
Pomeroy's   V--\,    Juris.    Vol.    1  par.    151   and  978. 
?isphams   Principles    of  Equity  par.    51, 
""hen  uses   first   were    introduced   into  English   lav/  there 
v/as   r\o  viay  loy  which  the    ov/nor   of  the    legal     title   could  be 
coiripelled  to   perform  his   duty   tov/ards   his  beneficiary.    It   was 
simply   a  moral   duty  that   existed   in  the   holder   of   the   le^al 
title,    he  might   perform  or  might   not   perform  as  he    saw  fit.      In 
case    of   religious   trust,    undoubtedly,    the  pov/er   of  the   church 
operated   to    compel   the   party  holding   the    legal   title   to    carry 
out   his   duty   towards  his  beneficiary   the   church.      It   was    quite 
possible   that   the   church  in'c'luenced  asserted   itself   in   favor 
of   the    laity.      It   was   a  matter   of   conscience   that   the   use    should 
be    observed  b^'   the  holder   of   the    legal   title   and  it    is  possible 
that   the  power  and   influence    of   the   church  v/a.3    interposed   in 
compelling  the  perfonnance    ana  observance    of  this   mc-.tter   of 
conscience.      It    is   well  Icnov/n  that    it    interposed  when  the    quest- 
ion \7as  between  the    church  and  the  holder   of   the   legal  title. 
It   v/as   not   until  the    reign   of  'denry  V  that    a   court    of   equity 
began   to   talce   jurisc'iction   over   the  matter   of  uses   and   frequent 
applic.-tion  at    this   time   to   the   court    of   equity  were   not    common. 
Puring  his    reign      application   for   relief   in   these  matters  were 
made    to    the   Chancellor,    who  v;as  usually   of   the   Clery   and   as   the 
duty   of  performance   was  purely  a  moral   one  he  v/as   peculiarly 
fitted  for  trying   and   detem-iing   such   questions.      P-uring   the 
reigns   of  Heiiry  VI    and  Edv.-ard   IV  the   jurisdiction   of   equity   over 
uses  hao   become    established  and   their   existence  had  been   re- 
cognized by   the   law  courts.   During  the   early  times   and  before 
the  passage    of  the    Statute   of  Uses   the   equitable    interest   was 
known   as   r-    use.    The   party  holoing  the   legal  title  vra.s   known  as 
the   feoffee   use   and  the  party  who  held  the    equitable    interest 
was    called  the   Cestui   ";ie      Use.      /fter   the   passage    of   the   Statute 
of  Uses   the   equitable    interest   was   designated  by  the  word  trust 
and    the   holder  of   the   legal  title   was   called  the   trustee   and 
the  holder   of   the    equitt-.ble    interest   v;as   knovni  as   the   Cestui 
^ue   Trust. 

Dictation. 
During   the   early  history   of   uses   there   v/as  no   law  by 
(cont'd   in  next    lecture) 


Oct.    .'U   1902. 


XIII.  ^GUITY  JURISPRUTO-,a'TE.    J"?..  61. 

L^CTTHIR  XIII. 

— 0 

(cont'd  from  Lect*  XIII.) 

in  v/hich.  a  use  oould  te  enforced.  It  constituted  siir.ply  a  moral 
CElieation,  Sor.ietimes  •'.ts  enforcement  was  brcu:iht  about  \jy   the 
interposition  of  the  clergy,  this  was  frequently  the  case  where 
the  use  was  in  regard  to  property  devoted  to  the  church.  Turing 
the  reign  of  Henry  V,  the  court  of  equity  "began  to  take  Jurisdic- 
tion, "but  frequent  application  to  the  court  at  this  time  were 
not  conraion. 


I  suggested  3.t  t^ie  close  of  the  last  lecture  that 
when  uses  were  first  introduced  in  I]ni.-land  there  were  no  courts 
in  vrhich  they  v/ere  enforced.  The  courts  of  law  did  not  take 
cog-nizance  of  them  because  courts  of  law  only  took  cocnizancc 
of  le:;£l  estates  and  courts  of  equity  when  they  were  first 
introduced  did  not  exercise  jurisdiction  over  thejt.  The  only 
remedy  that  the  pc_rty  had  was  the  remedy  that  was  secured  to 
him  to  a  certain  extent  through  ecclesiastical  interference,  which 
was  particularly  the  case  where  the  use  was  in  favor  of  a  relig- 
ious body.  And  undoubtedly  the  ecclesiastics  interefered  fre- 
quently and  secured  the  performance  of  the  use  where  it  was  in 
favor  of  a  private  person.   The  use  was  particularly  a  matter 
of  conscience  and  it  is  onlyimatural  for  us  to  suppose  that 
beinjs  a  natter  of  conscience  it  appealed  to  the  eccelesiastics 
anc"  they  frequently  interefered.  It  wcs  not  until  the  reign 
of  Henry  V,  that  courts  of  equity  began  to  take  C0e;nizance  of 
uses.  It  v;as  not  until  the  subsequent  raigns  of  Henry  VI  and 
Edward  IV,  that  all  cases  pertaining  to  uses  became  fixed  and 
established  as  a  matter  of  pure  equity  jurisdiction  and  courts 
of  law  came  to  recognize  the  fact  that  equity  lACuld  take  juris- 
diction oviir  the  use  and  enforce  it.  It  is  not  necessary  for 
me  to  describe  in  detail  the  several  statutes  in  regard  to  uses 
that  were  passed  prior  to  the  passage  of  the  Statute  of  Uses.  There 
were  several  statutes  passed,  their  object  being  the  regulation 
rather  than  the  extirpation  of  uses.  You  will  find  them  fully 
described  by  Spence  and  you  v;ill  i  ind  them  referred  to  by  Bispham 
in  his  work  on  equity. 

Dictation, 

.As  to  the  legislation  ccncerning  uses  passed  previous 
to  the  Statute  of  Uses,  see  Spence 's  Equitable  Jurisdiction, 
pages  461,462.  and  Bispham's  Principles  of  Equity  pages  75-76. 
It  was  not  the  purpose  of  this  legislation  to  destroy  uses  but 
simply  to  regulate  them  in  certain  particulars. 

It  was  not  until  the  Reign  of  Henry  VIII.  that 
any  legislative  attempt  was  made  to  destroy  the  use.  The  practice 
of  conveying  estates  to  one  person  for  the  use  a£   another  had 
become  so  general  at  that  time  as  to  give  rise  to  much  that  was 
prejudicial  on  account  of  the  secrecy  that  might  be  _:iven  to 
such  convey- nces.  Thus  purchasers  were  often  de  rauded  out  of 
their  purchase  money.  Land  vould  be  conveyed  to  a  person  not 


XIII.  EOUIVY  JTJ'J"PPL^:E1\TCE.  JTi.  52. 

loiov/ing  of  the  outstancinc  equity  a'-air.->t  it  anc  find  that 
tlieir  title  was  clouded  "oy  an  interest  th.-t  equity  would  recog- 
nise and  enforce  against  it.   It  also  "becsjiie  a  means  of  esc£t,pe 
to  dishonest  dihtors,  An   ordinary  legal  execution  could  not  be 
levied  against  an  equitahle  interest.  All  a  debtor  had  to  do  in 
order  to  escape  li  hility  on  oxecution  was  to  put  the  lega.1 
estate  out  of  his  hands  and  retain  the  usfe.  Even  to-day  this 
method  is  resorted  to  by  debtors  to  escape  liability  upon  their 
obligations  but  it  is  more  difficult  for  a  debtor  to  escape 
liability  in  thxis  way   on  his  oblig^'t  ion  than  it  formerly  was 
because  execution  may  by  statute  be  levied  on  equitable  interests. 
Uses  were  also  resorted  to  for  the  purpose  of  escaping  certain 
feudal  burdens.  Certain  of  the  feudf.l  burdens  would  not  attach 
to  feM.-^3±jcK3LfcK±  equitable  estates  and  interests.  These  t  ree 
difficulties  growing  out  of  uses  7.'ere  felt  particularly  among 
the  higher  classes  and  served  to  condemn  uses.   The  king  felt 
that  he  was  being  de-orived  of  ma.ny  of  his  feudal  rights  by  the 
conveying  of  land  to  the  use  of  another  for  t?ie  purpose  of 
escaping  the  feudal  burdens  that  attached  to  the  legal  estate. 
The  kin  :  foujid  in  his  nobility  s^nnpathetic  supporters  in  his 
plan  to  do  away  with  the  injury  or  supposed  in.-^ury  gro-.ving  out 
of  uses  and  the  celebrated  Statute  of  iTses  Wi'S  enacted  by  Parlia- 
ment in  the  twenty  ninth  year  of  the  reign  of  Kenry  VIII.  The 
.king  and  his  sympathizers  s\;pposed  that  this  statute  would  do 
av;ay  with  uses  altogether.  The  preamble  of  the  statute  is  broad 
and  condemns  in  terms  and  recites  the  evils  that  have  resulted 
from  uses  at  great  length  and  a  person  would  think  from  a  reading 
of  the  preainble  that  the  enacting  clause  would  be  of  a  form  that 
would  v/ipe  cut  of  existence  uses  entirely,  but  when  v/e  come  to 
the  enacting  clause  v;e  find  it  brief  and  narrow  in  its  scope  and 
in  substance  enacts  that  v/here  any  person  or  persons  shall  be 
seized  of  any  lands  or  other  heriditaments  to  the  use  of  any 
other  person  or  persons,  thei'j  Vm   person  or  persons  to  whom  the 
use  is  limited  shall  be  aeemed  to  be  in  leg?l  seizin  and  poss- 
ession of  the  land.   The  statute  does  not  forbid  uses  but  assumes 
that  they  v;ill  continue  to  exists  as  before.  This  was  probably 
designed  for  the  sti  tute  was  framed  by  men  learned  in  the  law 
and  who  would  neturally  know  whao  the  result  of  such  a  statute 

would  bee 

Dictation. 
On  account  of  the  extent: ive  holding  of  lana  to  the 
use  of  another  many  grievances  arose.  The  secrecy  of  the 
uses  resulted  in  the  defrauoing  of  purchasers,  also  through 
uses  debtors  freouently  escaped  from  obligations,  end  thro\igh 
I     them  also  many  feudal  burdens  v/ere  avoided.  These  injuries 
I     led  the  Pling  ?'.nd  the  mobility  to  insist  upon  the  enactment 
I     of  the  Statute  of  Uses,  passed  in  the   29  year  of  the  reign 
I     of  Henry  vm.  The  apparent  purpose  of  the  statute  was  to 
I     do  away  v;ith  uses.  The  weakness  of  tlie  statute  consisted 
I     in  the  nirrovmess  of  the  enacting  clause  v/hich  was  so 
I     framed  as  to  permit  uses  .  Its  wordin,;  assumed  that  uses 


XIII.         ■  -PIOJJITY   JUI;ISFP,U-)E1TCE.  JK.  63. 

wuuld  continue  to  exist. 

The  enacting  clruse  assximes  lay  its  vrordinr^  that 
uses  lender  certain  circumstances  v/ill  continue  to  exist.   It 
Bays  that  \7here  any  person  shall  stand  seized  of  any  lands  or 
other  heriditaments  to  the  use,  confidence  or  trust  for  eny 
other  person  or  persons,  the  person  or  persons  that  have  such 
use  or  confioence  or  trust,  that  is  the  person  "beneficially 
entitled  to  it,  shall  he  deeined  in  law  to  be  seised  rjid  possessed 
of  the  same  la.nds  and  hericitujrents.  The  language  of  the  statute 
contemplates  that  a  person  can  "be  so  seized  and  simply  turns 
the  use  into  a  le^jal  estate.  To  illustrate  the  working  of  the 
statute  let  us  suppose  a  feofferaent  is  made  to  A  and  "by  the  terms 
of  the  conveyance  he  is  put  in  possession  of  the  lands  to  hold 
for  the  benefit  of  3,  Before  the  passage  of  the  Statute  of  Uses 
A  v/ould  jiold  the  legal  title  and  3  holds  the  equita"ble  interest, 
A's  title  can  only  "be  enforced  and  pr'otected  in  a  court  of  law 
and  3's  title  can  only  he  protected  and  enforced  in  a  court  of 
equity.  The  Statute  of  Uses  Bays  that  when  a  person  s}iall  be 
seized  of  land  to  the  use  of  another  then  that  other  person 
shall  be  deemed  to  be  in  the  lee:al  seizin  and  possession  of  the 
sc--Jne.  The  other  person  becomes  the  legal  ovmer  of  the  property 
c.nd  there  is  no  equitable  interest  left  because  both  the  legal 
end   equitable  title  vest  in  B  bj'  force  of  the  statute  and  the 
legal  and  equitable  title  become  merged  in  the  legal  title. 
Yvherever  the  statute  applies  it  has  the  effect  of  turning  the 
equitable  interest  into  a  legal  interest, 

Dictation, 
The  Statute  of  Uses  enacts  in  substance  tliat  where 
any  per3ons  shall  be  seized  of  any  lands  or  other  heri- 
ditcjaents  to  the  use  bf  any  other  person  or  persons,  then 
the  person  or  persons  to  v/hom  the  use  is  limited  shall  be 
deemed  to  be  in  the  legal  seizin  and  possession  of  the  land  , 
(This  is  not  the  exact  words  of  the  statute,  it   is  abbrev- 
iated very  much,  but  it  is  the  substance  of  it) -  The  effect 
of  tlie  statute  v/here  it  applies  is  to  turn  the  equitable 
interest  into  a  legal  interest. 

Pomeroy's  Equity.  Vol.  2  par.  983. 

Spence  Equity  Jurisdictiono  Vol.  1,  pages  463-4, 

Story  Equity  Juris,  "'/'ol,  2  par.  970. 

The  Statute  of  Uses  instead  of  exterminating  uses  and 
confidences  as  the  King  and  the  nobility  expected  that  it  would 
acted   rather  as  a  stimulus  to  the  system.   The  failure  of  the 
statute  in  accomplishing  its  primary  purpose  was  due  to  both 
the  narrowness  of  the  statute-  itself  and  the  narrov;  and  strict 
construction  given  to  it  by  both  the  law  aiid  equity  courts.   The 
statute  by  its  terras  extended  only  to  uses  in  lands,  tene:nents 
and  heriditaments  and  did  not  a/yly  to  uses  in  personal  property. 
By  the  construction  of  thr^  courts  its  operation  was  limited  to 
cases  where  the  owner  of  the  legal  title  had  a  free  hold  estate. 
You  c&,nnot  be   seized  of  an  estate  for  years  because  it  is  per- 
sonalty, the  smallest  estate  that  can  be  seized  is  a  freehold 
estate. 


XIII.  EQUITY  JURISPRirnElTCE.    JR.  64. 

Dictation. 

Statute  was  narrow:   and  limit  3d.  in  its  terms  and 
applied  only  to  freehold,  interests. 

Under  this  construction  if  a  terra  for  years  was  held 
by  one  person  to  the  use  of  another  the  stati\te  did  not  operate 
and  the  le,::al  and  equitable  estate  remained  separate  and  dis- 
tinct. If  a  man  held  a  tern  for  one  hxindred  years  and  conveyed 
that  terra  to  another  person  to  hold  for  the  benefit  of  a  third 
person  the  statute  under  those  circumstances  would  not  apply 
because  there  was  no  seisin  for  it  is  not  a  freehold  interest. 
But  the  person  holding  the  freehold  interest  may  by  virtue  of 
the  statute  hold  it  for  the  benefit  of  another  person  for  s.   lim- 
ited time,  under  those  circumstances  the  statute  would  apply. 
It  was  held  that  where  the  feoffee  to  use,  that  is  the  trustee 
was  to  convey  the  land  or  collect  the  rents  and  profits  arising 
therefrom  and  pay  it  over  to  the  beneficiary  of  the  estate  the 
statute  ;iid  not  apply  in  such  cases.  The  use  was  not  executed 
and  it  was  held  that  the  legal  estate  remained  in  tlie   feoffee  in 
order  to  enable  him  to  perform  the  trust.   It  was  said  that  it 
was  improbable  that  Parliament  intended  to  take  the  legal  title 
out  of  the  feoffee  to  uses  and  p-'>.t  it  in  the  beneficiary  when 
the  thJ.ng  the  feoffee  was  bound  to  do  could  only  be  done  by  him 
while  holdini-,:  the  legal  estate.  So  in  all  cases  of  active 
trusts  the  statute  was  held  not  to  apply, 

Eictation. 

Statute  held  by  the  courts  not  to  apply  in  all  cases 
of  active  trusts  or  uses,  Where  the  feoffee  to  uses  under  the 
limitation  had  duties  to  perform  like  convoying  the  property, 
collecting  rents  a.nd  profits  and  paying  them  over,  etc.  it  was 
held  statute  did  not  apply. 

It  was  also  held  that  the  statute  did  not  apply  in 
case  of  implied  uses,  uses  raised  by  implication  of  law. 

It  was  finally  determined  that  the  statute  only  applied 
in  case  of  passive  uses  in  land  where  the  feoffee  held  at  least 
a  freehold  interest  in  the  lands.  Now  a  passive  use  is  a  use 
in  v/hich  the  holder  of  the  legal  estate  has  no  duties  to  perform. 
He  is  simply  a  depositary  of  the  legal  title.  Passive  us3S  were 
very  frequently  met  with  in  England  and  at  the  time  of  the  pass- 
at.;e  of  the  statute  a  good  deal  of  the  land  was  held  in  that  way. 

Dictation. 
Determined  finall:--  that  the  statute  only  a^^plied  to 
passive  uses  in  land  where  the  feoffee  to  uses  had  at  least  a 
free  hold  interest  in  the  land. 

Spence's  Equitable  Jurisdiction  Vol.  1,  466-7. 
Pomeroy  Sq.  Vol.  2.  par.  984. 
Perry  on  Trusts,  par.  300-305. 

The  great  body  of  the  commonalty  was  never  in  sympathy 
V7ith  the  Statute  of  Uses.  Certainly  the  statute  did  not  meet 
with  approval  from  the  judges  of  the  legal  profession  generally. 
The  prevailing  feeling  is  seen  in  the  action  which  was  taken  to 
avoid  the  effect  of  the  statute.  If  an  estate  is  given  to  A  for 
the  use  of  B  the  legal  estate  vested  in  S  by  force  of  the  statute, 


XIII.  EQUITY  JUiaSPRUDENCE.  JR.  65. 

IfVhat  would  "be  the  result  if  the  estate  was  limited  to  A  to  the 
use  of  3  in  fee  to  the  use  of  C  in  fee,  v/nat  interest  would  C 
take?  It  was  held  that  the  strtute  did  not  cover  such  a  case. 
The  lav/  courts  held  the  statute  only  extended  to  the  first  use. 
It  was  the  intention  of  the  transaction  as  indicated  "by  its 
terms  that  C  should  be  the  final  and  actual  henef iciai-y »  '-^"^e 
terms  of  thj  transaction  v/ere  to  A  in  fee  to  the  use  of  E  in 
fee  to  the  use  of  C  in  fee,  but  by  the  consti'uction  nut  upon  it 
by  the  law  courts  C  took  nothing.  By   their  ccnstruction  the  legal 
estate  stonped  in  B,  T]ie  equity  courts  said  here  is  a,n  injustice 
because  by  the  terras  of  the  transaction  the  beneficial  interest 
was  to  stop  in  C,  The  court  of  Chancery  took  the  matter  in  hand 
and  declared  that  although  the  legal  title  vested  in  B,  yet  B 
could  not  in  good  conscience  hold  the  title  for  his  own  benefit 
but  must  hold  it  in  trust  for  C.  By  this  action  of  the  oo  urt  of 
equity  G  obtained  the  equitable  estate.   A  large  part  of  the 
jurisdiction  of  the  equity  courts  seemed  to  be  taken  av;ay  by 
this  statute  but  by  seising  upon  the  construction  put  upon  the 
statute  by  the  la-v  courts  equity  still  retained  jurisdiction  to 
a  great  extent.  That  is  the  situc-.tion.  The  statute  only  applied 
in  case  of  passive  uses  in  a  freehold  estate  bat  even  in  that 
case  the  effect  of  the  statute  might  be  avoid.ed  by  adding  another 
party  to  the  convey: nee c 

I'icatation. 
.'i-nd  even  in  the  case  of  Passive  Uses  it  was  found  that 
the  sta.tute  might  be  avoided  by  r  dding  anoth:r  party  to  the  con- 
vejtance  .  .  -. 


Pomeroy  Sq.  Vol,  JJ-par.  ?^5. 

Spence  Eq,  Vol.  l^jpar.  490-491-492. 

It  seems  remarable  that  a  statute  whose  pramble  denoim- 
ces  uses  and  confidences  in  language  that  was  both  emphatic  and 
comprehensive  and  whose  purpose  as  understood  by  the  King  and 
his  s^/Tnpathizers  was  to  ere.dicate  uses  and  confidences,  should 
be  so  framed  as  to  accomplish  nothing  in  that  direction.   The 
Statute  was  dra-ivn  up  by  men  of  legal  learning  that  must  have  fcr- 
seen  what  construction  would  be  put  upon  it  by  the  courts.  Pji   att- 
eiirpt  to  accoimt  for  the  peculiar  construction  of  this  statute 
has  only  been  made  by  one  author  and  that  is  Pomeroy  in  his 
work  on  Equity. 

Pomeroy  Eq.  par,  983 ( Note) 

The  equitable  interests  known  as  uses  that  had  ex- 
isted prior  to  the  passage  of  the  Statute  of  Use3  were  ieft  in 
existence  subsequent  to  the  passage  as  I  have  explained  and 
continued  to  be  within  the  exclusive  jurisdiction  of  courts  of 
equity.  You  should  remember  tlas,  that  after  the  passage  of  the 
statute  of  uses  and  the  interpretation  put  upon  it  by  the  law 
courts  and  equity  courts  the  use  by  virtue  of  the  statute  passed 
within  the  cognizance  of  courts  of  law.  The  passage  of  the  stat- 
ute did  not  do  away  with  the  equitable  interest  but  on  acGO\mt 


XIII.  35QUITY  JUKI3PRUD3NCE.  JR.  66. 

of  its  narro\mess  practically  the  same  equitable  interests 
remained  although  the  nomenclature  was  sociev/hat  different.  But 
the  estate  end  interest  existed  suhstcntially  the  same  as  be- 
fore and  these  equitatle  interests  v/ere  protected  in  courts  of 
equity,  But  the  use  after  the  passage  of  the  Statute  'became  a 
legi-Q  estate  wherever  the  statute  applied.  The  use  originally 
an  equitable  interest  v;as  turned  into  a  legal  estate  cognizable 
by  courts  of  law,  V/here  proporty  was  conveyed  to  A  to  hold  for 
the  benefit  of  B  the  Statute  at  once  applied  and  the  legal  estate 
was  put  in  B  and  v/as  an  estate  that  a  court  of  lav/  would  recog- 
nize. That  effect  of  the  Statute  was  taken  advantage  of  by  con- 
veyancers, who  sav/  at  once  that  by  the  operation  of  this  statute 
the  inconvenience  of  livery  of  seizin  was  done  away  with.  They 
saw  at  once  if  they  could  create  a  situation  tliat  would  be  acted 
upon  by  the  statute,  the  statute  would  by  its  ov/n  force  create 
a  legal  title  v/ithout  the  process  knov.Ti  as  liver:/  of  seizin, A 
agrees  to  seel  a  piece  of  land  to  B,  B  agrees  to  purchase.  uTiat 
is  the  situation  from  that  tine?  A  becomes  a  trustee  of  the  land 
for  the  benefit  of  B,  holds  the  legal  title  for  the  benefit  of 
E.  B  is  the  equitable  owner,  but  the  Statute  conies  in  and  executes 
the  use  and  puts  the  beneficial  and  legal  title  in  B.  E  xmder 
this  system  by  force  of  the  statute  becomes  the  legal  owner  of 
the  property.  That  is  one  form  of  conveyance  that  arose  out 
of  this  Statute,  conveyance  known  as  BARG/JN  and  SALE. 

oCo-'  ---  Nov,  6th  1902. 


XIY.  EQUITY  JimiSPRUDElTCE.    JR.  67. 

U^CTUR^^  XIV, 
— 0— 

Perhaps  I  have  si.id  enough  in  regard  to  the  construction 
of  the  Staiite  of  Uses.   I  should  suggest  however  that  after  the 
passage  of  the  Statute  tJid  the  interprett^tion  put  upon  it  "by 
the  courts  the  use  hy  virtue  of  the  statute  passed  within  the 
cognizance  of  the  courts  of  law,   I  suggested  to  you  that  hy 
force  of  the  statute  it  hecame  possible  to  create  tv/o  or  three 
different  forms  of  conveyances.   These  conveyances  were  partic- 
ularly useful  in  as  much  as  through  them  the  old  cumbersome 
process  of  livery  of  seizin  would  be  dene  away  with.  Before  the 
passage  of  the  Statute  of  Uses  the  only  way  by  which  a  freehold 
est: te  could  be  delivered  was  by  corporeal  delivery  of  possess- 
ion. The  Stc.tute  took  the  place  of  a  formal  delivery,  l"herever 
the  Statute  executed  the  use  the  le~al  title  was  put  into  the 
grantee.   The  first  of  these  conveyances  was  Bargain  and  Sale, 
One  party  agreed  to  sell  a  piece  of  land  to  another  and  the 
second  party  agreed  to  purchase  and  upon  that  agreement  being 
entered  into  the  vendor  became  a  trustee  of  the  legal  title  for 
the  benefit  of  the  purchaser,  he  became  simply  a  passive  trustee. 
The  Statute  at  once  operated  and  executed  the  use  and  put  the 
legal  title  in  the  vendee.  So  a  deed  sprang  up  knovm  as  a  Bargain 
and  Sale,  The  Stattrte  not  only  put  the  title  but  the  possession 
in  the  vendee,  and  under  ejid  by  force  of  the  Sti^tute  the  pur- 
chaser was  held  to  be  in  possession  of  the  land  altrxough  he 
never  had  seen  it.   The  second  form  of  conveyances  which  were 
areated  as  a  result  of  this  Statute  was  knn^  i  as  Lease  and  Re- 
lease,  The  owner  of  the  freehold  enters  iuto  an  agreement  with 
the  vendee  to  seel  him  the  use  of  the  property  for  a  certain  - 
length  of  time,  say  a  year,  that  vests  in  the  vendee  the  equit- 
able interest  in  that  property  for  a  year.  The  Statute  by  force 
of  its  terms  vests  the  legal  title  in  the  vendee  for  a  year.  ~e- 
ing  in  possession  of  the  legal  interest  for  one  year  it  was  easy 
for  the  vendor  to  release  his  reversion  in  the  freehold.  The 
release  could  be  tone  without  eny   livery  of  seisin.  The  lease 
v/as  made  on  one  day  and  the  release  made  on  the  next.  This  was 
held  to  supply  the  place  of  livery  of  seizin;  and  so  a  c  cnvey- 
ance  by  lease  and  release  is  said  to  have  amounted  to  a  feoffment, 
These  were  the  tv;o  principla  conveypnces  and  the  modem  deed  of 
to-day  is  mede  up  largely  of  the  elements  of  bargain  and  sale 
and  XKlease  and  release.   The  use, after  the  passage  of  the 
Statute  and  its  construction  by  the  courts,  became  a  legal  est- 
ate and  of  particular  importance  in  the  law  of  ccnveyancing, 
A  third  speciies  of  conveyance,  to  v;hich  this  statute  gave  rise, 
is  called  a  covenant  to  stand  seized  to  uses;  by  which  a  man 
seized  of  lands,  covenants  in  consideration  of  bleed  or  marriage 
that  he  v;ill  stand  seized  of  the  same  to  the  use  of  another. 
That  deed  makes  him  the  trustee  of  the  property  for  the  benefit 
of  the  person  designated  in  the  deed.  The  statute  at  once  ex- 
ecutes the  estate  and  passes  the  legal  title  to  the  covenantee, 

T"ictation, 

By  virtue    of  the   Statute   of  Uses    it   became  possible   to 


XIV,  EQUITY  jrmiSPRUO.^lTCE.  JR.  68. 

construct  conveyrjices  t^o.t  vro\ild  pass  the  freehold  interest 
VTithout  resort  to  corporeo.1  posFession.  In  order  to  Trame 
svich  coiveypjices  it  hecame  necessary  r'  iply  to  create  the 
relation  of  feoffee  to  uses  and  cestb.  que  use,  the  feoffee 
holding  the  legal  title  for  the  benefit  of  the  cestuy 
que  use.  Then  the  Str  .ute  would  execute  the  use.   There 
were  three  forms  of  conveyances,  at  least,  that  arose  in 
this  way,  namely,  Covenant  to  staiid  seized,  barcain  and 
sale,  and  lease  and  release. 

In  as  much  as  the  use  by  virtue  of  the  construction 
put  upon  the  st:tute  by  the  courts,  passed  within  the  cognizance 
of  the  common  law  tribimals  it  became  necessary  to  adopt  new 
name  by  which  the  equitable  interest  could  be  designated  in 
order  that  the  equitable  interest  might  not  be  confused  with 
the  legal,   F"o  soon  after  the  passage  of  the  Statute  of  Uses 
and  the  construction  put  upon  it  by  the  courts,  the  person  hold- 
ing the  legal  estate  was  known  as  the  trustee  instead  of  feoffee 
to  uses,  and  the  person  holding  the  equitable  estate  was  known 
as  the  cestuy  que  trust  instead  of  the  cestui'"  que  use  and  the 
estate  was  designated  as  a  trust  instead  of  a  use.    I  have 
suggested  that  the  Statute  never  applied  to  personal  property. 
It  never  applied  to  active  uses,  and  its  application  was  confined 
to  express  passive'  uses  in  land.   As  express  passive  uses   or 
trusts  in  land  are  little  used  in  this  country  and  have  been 
prohibited  by  statutes  in  sane  states  it  follows  that  the  Statute 
of  Uses  is  of  little  practical  importance.  It  is  desirable  to 
have  an  idea  of  the   statute  and  its  workins  as  in  important 
piece  of  legal  history  effecting  the  existence  of  trusts.  The 
statute  has  had  a  most  important  influence  upon  the  l£.w  of  real 
property.  Chancellor  .rent  says"  The  principles  of  this  statute 
have  insinuated  themselves  deeply  and  tho^oughly  into  every 
branch  of  real  property,"   I  have  explained  to  you  the  origin 
of  uses  and  the  changes  that  took  place  subsequent  to  the  pass- 
age of  the  Statute  of  Uses,   I  said  that  the  various  kinds  of 
equitable  interests  existing  prior  to  its  passage  were  preserved 
a.fter  its  passage  under  the  nvxae   of  trusts,  We  now  have  a  gen- 
eral notion  of  wnat  interests  are  referred  to  by  the  use  of  the 
term  trust.  We  will  now  consider  the  various  kinds  of  trusts, 
I  will  first  consider  this  division  of  the  subject  v;ithout  ref- 
erence to  eny   statutory  changes.   The  law  at  developed  by  the 
English  Court  of  Equity  exists  in  mosts  of  the  States  without 
Statutory  changes.   In  a  few  states  a  strtutory  system  of  trusts 
have  been  developed  and  later  after  I  have  explained  the  general 
system  I  will  devote  a  little  time  to  the  Statutory  system.  I 
may  say  that  all  trusts  whether  of  land  or  personalty  are  divided 
into  two  great  classes;  one  class  including  all  trusts  known  as 
Expressed  trusts,  and  the  other  class  c.ll  those  trusts  that 
arise  by  implication  of  law.   An  expressed  trust  is  one  that 
is  created  by  the  expressed  and  intention  act  of  the  party 
owning  the  property  with  the  view  of  raising  a  trust.  Expressed 
trusts  are  caused  by  direct  volition  of  the  p^rty  owning  the  lajid. 

Dicatation. 
All  trusts  are  divisible  first  into  expressed 


ZIV.  EQUITY  JTIRISPRUTEIICS.  JR,  69. 

trusts,  seconf^ly  into  implied  tntsts.  An   exnressed  trust  is 
one  tha,t  is  created  l)y   tha  act  of  the  party  CTning  the  property 
that  is  the  suhject  matter  of  the  trust,  w^ich  act  is  done  with 
the  expression  intention  of  raising  a  trust, 

Pomeroy's  Eq.  Vol.  1,  ppr,  152. 
"  "  2   par.  9£;7.. 

Spence  Eq.  r^age  494. 

Story's  Eq.  Vol.  2  par,  980« 

An  implied,  trust  as  the  names  indicates  is  a  trust 
raised  hy  implication  of  lav/.   It  is  not  the  result  of  contract 
between  the  Parties.  It  is  not  the  result  of  any  expressed  in- 
tention on  the  part  of  the  person  ovming  the  property.   These 
trusts  may  arise  under  two  different  circumstances  or  set  of 
factsj  in  the  first  place  there  may  be  a  transaction  between  the 
parties  that  results  in  a  transfer  of  the  legal  title  but   the 
circums :ances  of  the  transaction  are  such  as  to  indicate  that 
the  intention  was  that  the  one  who  gets  possession  of  the  le- 
gal title  is  to  hold  it  for  the  benefit  of  the  grantor.    VTiere 
a  person  gets  title  to  property  through  use  of  money  belonging 
to  another,  the  circumstances  showing  that  it  was  the  intention 
of  the  parties  that  the  legal  title  shall  be  held,  for  the  ben- 
efit of  the  person- furnishing  the  purchase  money,  a  trust  will 
be  raised  by  implication  of  law  in  favor  of  the  party  furnish- 
ing the  purchase  money.  There  is  something  in  the  transaction 
itself  from  which  the  law  will  infer  that  it  was  the  intention 
of  the  parties  that  a  trust  should  be  created  .  This  trust  is 
known  as  a  resulting  trust.   The  person  uses  money  belonging  to 
cjiother  and   takes  title  in  his  own  name,  a  trust  results  in 
fcvor  of  party  furnishing  the  consideration.  I  should  say  that 
the  equitable  title  in  form  of  a  resulting  trust  will  always 
pass  to  the  person  furnishing  the  consideration.  If  in  any  cont- 
roversy you  can  put  your  hands  upon  the  person  v/ho  furnished  the 
purchase  money  you  have  found  the  person  who  is  entitled  to  the 
equitable  interest.   That  is  one  class  of  implied  trusts,  the 
other  class  of  implied  trusts  includes  those  types  in  v;hich 
the  trust  relation  is  raised  not  by  virtue  of  any  presumed  in- 
tention of  the  parties  but  because  it  is  necessary  to  raise  the 
trust  relation  in  order  to  do  what  is  equity  cjid  justice.  The 
trust  relation  is  thrust  Upon  the  parties  in  orc'er  that  the  court 
by  means  of  the  trust  na^v  mrke  the  parties  do  what  in  equity 
and  good  conscience  they  ought  to  do.   Suppose  a  person  has  ob- 
tained possession  of  a  negotiable  instrumerit  bz--   fraud  and  v/ith- 
out  paying  any  consideration,  he  negotiates  it  to  a  person  who 
understands  the  way  in  v;hich  the  nute  has  been  obtained,  the 
legal  title  has  passed  to  the  grantee  but  he  takes  it  with  know- 
ledge of  the  existing  equity  cgainst  it;  a  court  of  equity  will 
make  out  of  this  wrong  doer  a  trustee  of  the  negotiable  instru- 
ment for  the  benefit  of  the  true  owner.   The  owner  may  go  into 
a  court  of  equity  and  get  an  injvmction  restraling  him  from 
further  transferring  the  instrument  for  the  purpose  of  keeping 


XTV,  EQIHTY  JUPJ SPllUDENCE .  JR.  70. 

the  matters  in  statute  quo  until  the  situation  cm   "be  adjusted 
judicially.   I  may  go  into  a  court  of  law  r;  1  sue  but  "by  going 
into  a  court  of  chrjicery,  I  can  get  the  actual  possession  of 
the  instrument  that  was  wroncfully  transferred.  This  trust 
which  is  raised  is  called  a  constructive  trust.  TTherever  title 
has  "been  obtained  through  fraud  and  wherever  it  is  determined 
that  a  trust  relation  is  necessary  in  order  to  enable  the  court 
to  make  the  parties  do  what  in  equity  and  good  conscience  they 
should  do,  a  constructive  trust  v/ill  be  raised. 

Dicatation. 
Implied  trust  ere  those  that  are  raised  by  law,  first, 
for  the  purpose  of  carrying  out  tlie  intention  (presumed)  of  the 
parties,  when  they  are  called  resulting  trusts,  Secondly,  for 
the  purpose  of  dooing  what  in  equity  and  good  conscience  should 
be  done,  when  they  are  called  constructive  trusts, 

EXPRESSED  TRUSTS, 
Now  let  me  return  to  the  first  of  the  two  great 
classes  of  trusts,  namely  expressed  trusts,  j'irst  in  order  will 
be  an  explanation  of  the  manner  in  which  expressed  trusts  may 
be  created.  Previous  to  the  passage  of  the  Statute  of  Erauds 
a  declaration  of  a  trust  v;as  not  required  to  be  made  in  any 
particular  v&y   wherever  the  trust  was  of  personalty,   vhere  a 
v.Titing  was  required  for  the  conveyance  of  the  legal  interest 
the  better  opinion  is  that  a  writing  was  required  for  the 
creation  of  a  use  or  trust.  'low  a  law  as  regards  expressed  trusts 
in  real  estate  v/as  passed  during  the  reign  of  Charles  II..  This 
Statute  which  was  known  as  the  Statute  of  Frauds,  provided  among 
other  things,  that  all  declarations  or  creations  of  trusts  or 
confidences  in  Buy   IcJids,  tenements,  or  heriditaments  shall  be 
mrjiifested  rnd  proved  by  some  writing  signed  by  the  party  who  is 
in  law  able  to  declare  a  trust, or  by  a  last  will,  etc.  There 
is  another  provision  often  overlooked  and  forgotten  more  readily 
by  students,  which  is  in  sub st;  nee  as  follov7s:   that  all  grants 
and  assignments  by  the  eestuy  que  trust  of  any  trust  or  confidence 
in  realty  must  also  be  in  T;riting,   The  Interest  of  the  bene- 
ficiary cannot  be  transferred  except  by  a  writing.   The  lang- 
uage of  the  statute  is  somewhat  peculiar,  iu  provides  that  no 
declaration  of  any  trust  shall  be  manifested  or  proved  except 
by  some  writing,  etc.,  it  does  not  require  that  the  declaration 
of  the  trust  be  in  writing,  but  it  must  be  proved  by  sane  writing. 
The  courts  have  established  the  doctrine  that  it  is  not  necessary 
for  the  validity  of  the  trust  that  it  be  declared  or  created 
by  a  writing  but  only  that  it  be  manifested  or  proved  by  sane 
writing.  A  trust  may  be  created  by  parol,  but  the  moment  you 
get  into  court  and  are  required  to  proved  the  trust  then  some 
some  writing  must  be  produced.   This  is  the  interpretation  put 
upon  the  English  Statute  of  Frauds,  but  in  order  to  avoid  con- 
fusion I  will  say  that  the  same  interpretation  exists  as  a  rule 
in  this  country,  although  some- of  the  statutes  are  different. 


XIV.  EQUITY  JUrJSPKUDENCE.  JR.  71, 

Dictation. 
Previous  to  the  passage  of  the  Statute  of  ii'raudsCaQ  Car, II,) 
trusts  in  lands  might  he  cref.ted  and  proved  hy  parol,  hut  the 
Statute  provided  in  suhstance  that  all  declarations  of  trusts 
in  lands  shall  be  manifested  and  proved  hy  ^ome  writing  signed 
hy  the  party  who  is  to  declare  the  trust,  and  further  that  the 
interest  of  the  beneficiary  must  he  assigned,  if  at  all,  hy  a 
writing, 

Pomeroy  Vol,  2,  par.  1006, 
Bispham  par  .  64. 
3y  the  construction  of  the  courts  trust  after  the 
passage  of  the  Statute  may  he  created  hy  parol  hut  they  must 
he  mejiifested  and  proved  hy  a  writing. 

The  trust  may  he  manifested  in  various  ways,  in  a  deed 
that  conveys  the  legal  title  and  this  is  the  usual  place  for 
the  manifesting  of  the  trust.  The  legal  title  is  conveyed  to 
the  trustee  with  instructions  to  hold  it  for  the  use  of  another. 
The  trust  may  he  manifested  in  a  separate  instrument  executed 
simultaneously  with  the  deed  and  as  a  part  of  the  deed  showing 
the  use  to  which  the  property  is  t o  he  put  hy  the  grantee.  The 
trust  may  he  majiifested  in  a  v/ill,   A  party  may  hy  a  writing 
declare  himself  to  he  the  trustee  of  lands  for  another  person 
and  that  he  holds  the  lajids  for  certain  specific  purposes.   In 
all  these  cases  except  the  last  the  v/ritten  evidence  of  the 
trust  comes  from  the  grantor  hut  i.t   may  come  from  the  grantee. 
The  declaration  of  the  trust  may  he  executed  simultaneously 
with  or  subsequent  to  the  the  execution  of  the  deed  conveying 
the  legal  title.   The  declaration  of  the  trust  may  come  from 
the  grantee  at  the  time  of  the  executing  of  the  deed  or  years 
afterwards.   The  writing  declaring  the  trust  may  he  a  very  in- 
formal document  and  still  he  sufficient  to  satisfy  the  require- 
ments of  the  Statute,   It  must  contain  certain  essentials  but 
those  essentials  may  be  contained  in  a  Diost  informal  document. 
The  trust  may  be  proved  by  letters,  memorandiim,  recitals  etc.  The 
trust  may  be  proven  by  an  admission  in  pleadings,   I  remember  a 
case  where  a  trust  was  proven  by  a  memorandum  written  on  an  old 
yellow  envelope. 

Dictation. 
The  writing  by  v/hich  the  trust  is  :anifested  and  proved 
may  be  contained  in  the  conveyance  of  the  lc:;;al  title  or  it 
may  he  an  instrument  executed  by  the  grantee  at  the  time  he  re- 
ceived the  legal  title  or  even  subsequent  to  that  time,  and  the 
declaration  may  be  a  most  informal  document,  may  he  a  letter  or 
a  mere  memorandinn, 

Pomeroy' s  Eq.   Vol.   2,    par.    1006-7. 

Urann  vs,   Coates(Illus.    cases  page  359) 
(    109  Ifess   581) (Study  carefully) 

Bates  vs.   Hurd(Illus,    cases  page  361) 
(65  I'laine   180) 


XrV.  EQUITY  JUP.ISPRUDMCE,    JR.  72. 

Hutchins  vs.    Vsji  Vechten.    (Illus,   cases  page   357) 

(    35   IJ.E.    446,    140  N.Y.    115) 
llcVay  vs.   McVry( Illus.    cases  pcge  363) 

(    10  Atl,    178,    43   IT. J.    '^q.    47) 

The  English  Statute  of  frauds  has  "been  re-enacted  in 
most  of  the  states  in  this  country  but  the  language  of  sane 
differ  from  the  English  Statute,  "but  the  interpretation  put 
upon  them  by  the  courts  has  been  the  stme  as  -nut  upon  the  Eng- 
lish Statute.   The  I.Iaine  Statute  requires  that  trust  must  be 
created  and  declared  by  some  writing.  What  would  you  think 
the  meaning  of  that  clause  v/ould  be?   Ordinarily  you  would  say 
that  a  writing  is  necessary-  for  the  rr.ising  of  a  trust,  but 
it  seems  that  the  Supreme  Court  of  Maine  held  that  a  trust  may 
be  created  by  parol  but  must  be  manifested  and  proved  by  some 
writing.   The  words"created  and  declared"  in  that  statute  seem 
to  be  construed  by  the  courts  to  be  synonymous  with"manifested 
and  proved  as  they  stood  in  the  English  Statute  of  Frauds, 

oOo Nov.  7  1902. 


XV,  EQUITY  JURISPRUDENCE.  JR.  73. 

LECTURE  XV. 
— 0— . 

In  my  last  lecture  I  was  speaking  about  the  Statute 
of  Frauds  and  its  effect  upon  the  creation  of  trusts,  I  had 
suggested  that  the  English  Statute  of  Frauds  was  sanewhat  pec- 
culiar  in  its  language,  providing  that  every  trust  and  confid- 
ence in  lands  must  te   manifested  and  proved  hy  some  writing 
signed  "by  the  party  v/ho  desires  to  raise  the  trust.  I  had  suggest- 
ed that  the  words  "manifested  and  proved"  have  "been  construed 
to  the  effect,  hoth  in  England  and  in  America,  that  it  is  only 
necessary  to  produce  some  writing  v/he^a  you  desire  to  prove  a 
trust.  It  may  he  created  by  parol  and  it  only  'becomes  necessary 
when  litigation  arises  and  you  must  make  known  the  trust  te 
the  court  in  a  legal  way,  that  you  must  produce  a  writing  that  . 
will  satisfy  the  requirements  of  the  statute.  Y/hat  that  writing 
must  cmrt  ain  I  v;ill  explain  before  the  close  of  this  lecture. 
In  the  United  States  the  Statutes  of  Frauds  in  the  various 
states  are  somewhat  different,  varying  in  their  provisions  es- 
pecially in  regard  to  the  creation  of  trusts.  I  think  that  there 
are  such  statutes  in  all  the  states  of  the  imion.   I  had  suggest- 
ed under  this  head  in  my  last  lecturetLe  difference  in  the  lan- 
guage of  the  statutes  of  the  several  state.   T^e  English  Stat- 
ute of  Frauds  has  been  re enacted  in  most  of  the  States  of  the 
Union  but  the  language  of  some  differ  from  the  English  Statute, 
but  the  interpretation  put  upon  them  by  the  courts  has  been  the 
same  as  put  upon  the  English  Statute.  3y  consulting  these  stat- 
utes you  will  find  that  the  word"manif ested  and  proved"  of  the 
original  Statute  have  been  misplaced  by  the  words  "created  and 
declared"  by  some  writing.  This  change  in  the  language  has  been 
quite  generally  held  not  to  have  any  substantial  anfStBonce  upon 
the  effect  of  the  statute.  The  words  "manifested  and  proved" 
and  the  words  "created  and  declared"  have  been  held  to  be  equiv- 
alent to  each  other.  Browne  on  the  Statute  of  Frauds,  has  coll- 
ected the  statute  of  the  various  states  on  this  subject  and 
for  a  further  investigation  you  will  find  them  in  that  work. 
It  has  been  held  in  Mich,  New  Jersey  and  New  York  and  perhaps 
in  several  other  states  that  an  admission  in  pleadings  is  suff- 
icient to  create  a  trust.  Suppose  a  man  holds  property  in  trust 
for  another  under  a  p; rol  agreement,  and  he  is  proceeded  against 
in  equity  for  an  accounting  of  the. proceeds  of  the  trust,  and 
in  his  answer  admits  the  trust  that  has  been  held  a  stLfficient 
compliance  v/ith  the  statute  to  prove  a  trust. 

Dictation. 
In  American  Statutes  we  find  usually  the  words  "created 
?»■?  il«clared  as  a  rule  instead  of  the  words  "manifested  and 
proved  ",  but  the  courts  of  this  country  have  very  generally 
held  that  the  two  forms  of  expression  are  equivalent  to  each 
other. 

See  cases  last  cited. 

See  also  the  following  cases  which  affirm  the  doctrine 


XV.  EQUITY  JURISPRUDENCE.  JR.  74. 

thAt  a  trust  may  "be  acknowledged  in  a  pleading  and  that  the 
statute  will  therety  be  satisfied: 

Patten  vs.  Chcmberlain  44  Mich.  5. 

McVay  vs.   McVaydllus,    cases  page   363) 
(10   Atl.    178,    43   II. J.    :^q.    47) 
I  have  heen   speaking   of  the  Statute    of  Praud  as   it   applies 
to   trust    in   real  property,    I   shall   say  that   the   Statute   does  not 
apply  to   trusts   in  personalty, 

Dictationo 

The    Statute    of  Frauds   only  applies   to   real  property. 
Within  the   term  real  property   is   comprised  chattels   real.   The 
Statute   of  Praud  applies   to   chattels   real. 

Pomery's  Eq.   par.    1008, 

Bispham  par.    64. 

Perry  on  Trusts  par.  86, 

But  the  statute  does  not  apply  to  money  secured  by 
mortgages  or  other  charges  upon  land. 

Dictation  J 
Parol  evidence  J  however;  by  which  a  trust  in  personalty 
is  established  must  be  of  the  most  clear  and  convincing  kind,  and 
must  find  support  in  the  cirormstances  surrounding  the  trans- 
action and  in  the  subsequent  conduct  of  the  party.   A  very 
good  illustration  of  this  principle  is  forr:=  in  the  case  of: 

I-'ristman  vs  Kristman  23  Mici,  ;..  17. 
See  also: 

33  N.J.   Eq,  133,  Dansjr  vs.  V/arwick. 

(Illus,  cases  page  365) 
Perry  on  Trusts  par,  86. 

All  trusts  that  arise  by  operation  or  implication  of 
law  or  in  other  words,  all  resulting  or  constructive  trusts 
are  excepted  by  the  English  Statute  of  Prauds.  No  exception  is 
really  necessary  because  a  resulting  or  qd  nstructive  trust 
arises  out  of  circ\imstances  surrounding  the  case  and  not  out  of 
Einy  writing,  A  resulting  trust  may  be  the  result  of  a  v/riting 
but  the  writing  itself  does  not  create  the  trust.  If  it  is 
created  by  writing  it  is  an  expressed  and  not  a  resulting  trust, 
A  resulting  trust  is  one  that  the  law  raises  on  account  of  the 
presumed  intention  of  the  parties.  A  constructive  trust  is  one 
that  is  thrust  upon  the  parties  by  the  law  in  order  that  honesty 
and  fair  dealing  may  be  brought  about. 

Dictation. 
Implied  trusts  are  specially  excepted  from  the  Eng- 
lish and  from  some  of  the  American  Statutes,  although  such  ex- 
ception would  seem  to  be  unnecessary. 

Browne's  Statute  of  Prauds  par  83. 

Pomeroy  Eq.  par  1008,  vol,  2, 

Bispham' s  Prin.  Eq.  par.  64, 

^I  will  now  explain  what  a  writing  must  contain  by 
Y/hich  a  trust  must  be  manifested  and  proved.  The  writing  need 
not  be  in  any  particular  form.  I  have  suggested  that  it  might 
be  in  the  form  of  a  letter,  in  the  form  of  a  memorandvim,  in 
the  form  of  pleading,  in  the  form  of  a  deed  or  will,  might  be 
in  the  deed  bv  which  renl  nro-nertv  in  rnnvpyp.H 


XV.  EQUITY  JTJEIRPRDTjElTdE.    JB.  75. 

might  "be    in  the   form  of   a   contract  ^    might  be    in  any  formal 
document,    but    it  may  be  me.iiifested.   a,nd  proved  by  the  most   in- 
formal  document  provided   it    contains    •.•er.:ain  essentials.    In 
the    first   place   the   dociv.nent  must    s'.gw  the   "■■v-'terition   of   the  per- 
son  signing  to   create    a  trust.    It    it.   appea-      t'.at   the    intention 
of  the  party   is   to   raise   a  trust    so::?,    tii^ia   in  the   future  that 
will  not   be   sufficient   as  a  manifest. at:. on  and  proof   of   the 
trust   under  the    statute.   The   document  must    indicate   a  present 
intention   on  the  part    of  the  party   signing  to   create   a  trust. 

Dictation. 

Although  an  instr\iment  by  which  a  trust  is  manifested 
and  proved  may  be  a  most  infonrial  document,  yet,  there  are  cer- 
tain essentials  that  it  must  oo  rt  ain.  It  must  show  first  a  pre- 
sent intention  on  tho  part  of  the  one  signing  it  to  create  a 
trust. 

It  must  show  what  property  is  to  be  assigned  by  the 
trusts  It  is  not  necessary  that  it  be  specifically  described 
as  in  a  deed  but  the  property  must  be  so  described  so  that 
it  can  be  identified  and  ascert;  ined  without  difficulty.   The  pro- 
perty must  be  identified  in  the  instrument  so  that  a  person 
reading  the  instrument  can  say  what  property  is  to  be  assigned 
by  the  trust.  It  may  be  identified  by  a  specific  description 
in  the  instrument  or  by  a  reference  to  some  description  in  another 
document. 

It  must  also  appear  from  the  instrument  what  the 
trust  is.  The  dociiment  must  be  such  that  upon  a  reading  of  it 
it  can  be  ascertained  what  the  trust  is  without  being  obliged 
to  resort  to  parol  evidence. 

Bictation. 

The  docvment  must  jhov/  in  a  general  way  what  the 
trust  is. 

The  instrument  must  show  the  parties  to  be  affected 
by  the  trust,  I  do  not  mean  by  that,  that  the  parties  giust  necess- 
arily be  named  in  the  document,  bv;t  they  must,  however,  either 
be  named  or  described  and  referred  ; :  in  such  a  way  that  they 
can  be  identified  otherwise  their-  intersts  will  not  be  protected 
under  the  meorandum. 

Those  are  the  char ci.ct:;ri sties  you  must  find  in  the 
document  by  which  the  trust  is  manifested  ?..'  proved. 

Pomeroy*s  Eq=,  par.  1009, 

Bispham  princ.  eq^  paro  65 « 

Perry  on  Trusts  pars.  8'". ,83, 

Dictation. 
No  particular  words  are  necessary,  the  words  "trust  and 
trustee"  are  not  necessair  thcur;\  usually  used, 

Tobias  vs.  Ketchum*(Iilus.  cases  page  367) 
Pomeroy  Eq.  vol.  2  par.  1009. 
60  Penn  State.  344, 

Now  the  intention  to  create  a  trust  may  be  gather 
after  a  consideration  of  the  instrument  as  a  whole,  A  separate 


■t  .V. 


XV.  EQUITY  JURISPRUDENCE.  JR.  76. 

class  of  trusts  arises  out  of  the  situation  such  as  I  have 
suggested  knovm  as  expressed  trust  inferred  hy  the  construct- 
ion of  the  instrument.  You  cannot  single  out  any  particular 
part  of  the  instrument  that  creates  a  trust  hut  vdien  you  come 
to  take  the  instrument  as  a  whole  you  see  that  the  parties  in- 
tended to  create  a  trust,-  I  wish  to  impress  upon  you  that 
trust  may  arise  out  of  contract  relations  between  parties  and 
v/hen  they  so  arise  are  based  upon  a  consideration.  That  is  one 
class  or  division  of  expressed  trusts.  But  trusts  may  arise 
without  any  agreement  betv/een  the  parties,  arising  out  of  the 
intention  of  the  person  ovming  property  to  hold  it  for  the  bene- 
fit of  another,  these  trusts  are  purely  voluntary  and  not  based 
upon  a  consideration,  the  party  receiving  the  benefit  paying 
nothing  for  it  and  promises  to  pay  nothing  for  it  and  that 
constitutes  another  class  of  expressed  trusts. 

Dictation. 
The  mere  inchoate  desire  to  create  a  trust  at  some 
future  time  is  not  sxifficient  even  though  solemnly  and  formally 
expressed.  The  intention  must  be  a  present  one  and  a  completed 
one .  These  suggestions  are  pertinent  in  connection  with  the 
subject  of  voluntary  trusts. 

VOLUOTARY  TRUSTS, 

Dictation. 
Trusts  may  arise  out  of  contract  --elations,  out"  di" 
special  agreement  between  the  parties;  trusts  of  this  kind  are 
based  upon  a  consideration  and  constitute  an  important  class 
of  expressed  trusts.  But  trust  can  arise  out  of  the  voluntary 
act  of  the  party  owning  the  property,  trusts  of  this  kind  are 
not  based  upon  a  consideration. 

This  matter  of  the  absence  or  presence  of  considerat- 
ion is  of  great  importance  in  this  class  of  trusts. 

Dictation. 

V.'here  trusts  are  based  upon  a  consideration  any 
irregularity  connected  with  the  transfer  of  the  legal  title  is 
of  little  importance  for  the  irregular  instrument  of  conveyance 
will  be  held  by  the  court  to  be  an  agreement  to  convey.  If  the 
deed  by  which  it  is  intended  or  attempted  to  convey  the  legal 
title  is  informal  the  court  of  equity  there  being  a  considerat- 
ion will  regard  as  an  agreement  and  will  compel  the  execution 
of  the  instrument.  V/herever  there  is  a  consideration  underlying 
a  transaction  the  party  furnishing  the  consideration  is  the  one 
equitably  interested  and  his  rights  will  be  protected  even 
though  the  transaction  be  an  informal  one. 


Nov,  13,  '02.. 


4- 


XVI.  3Q,UITY   JUHISPRtlDENCE   JR.  77, 

LECTURE        XVI. 
— oOo-- 


V^e  were  considering  the  subject  of  volrntary  trusts.  As  an 
introductory  statement  of  that  statement  I  suggested  to  you  the 
equitable  doctrine  in  regard  to  consideration,  which  is  this:that 
where  a  transaction  is  based  upon  a  consideration  even  though 
it  is  informal  equity  v/ill  regard  the  instrxoment  as  an  agreement 
to  convey  and  will  enforce  the  agreement.  If  the  instrument 
is  a  deed  but  is  too  informal  to  convey  the  legal  title  but 
there  is  a  consideration  for  it,  equity  will  consider  the  deed 
as  a  contract  to  convey  and  will  enforce  the  deed  as  a  contract. 
The  grantee  in  the  deed  can  file  his  bill  in  equity  for  the 
specific  enforcement  of  the  contract.  ITow  let  us  suppose  the 
transaction  is  purely  a  voluntary  one,  not  based  upon  any  con- 
sideration. A  party  desires  to  make  another  the  object  of  his 
bounty,  he  does  so  but  in  such  an  irregular  way   that  the  legal 
title  does  not  pass,  will  equity  consider  him.  as  the  trustee 
of  the  legal  title  for  the  person  whom  he  intended  to  benefit? 
A  perfect  and  complete  trust  \;ill  alv/ays  be  enforced  in  equity 
even  though  it  is  purely  voluntary,  but  ir.  order  that  the  oo  urt 
may  take  jurisdiction  and  enforce  the  trust  it  must  be  complete 
and  perfect.  If  a  person  desires  to  convey  the  benefit  of  his 
bounty  upon  another  person  he  may  do  so  in  either  of  three  ways. 
In  the  first  place  he  may  convey  to  that  person  v;hom  he  intends 
to  benefit  the  legal  title  to  the  property.  Suppose  I  desire 
to  convey  the  benefit  of  my  bounty  to  a  friend,  I  may  convey 
the  legal  title  to  my  friend  although  therox  is  no  consideration, 
although  a  consideration  should  be  expressed  in  the  deed.  If  I 
convey  the  la.nd  directly  to  the  party  intended  to  be  benefitted 
and  observe  all  the  formal  rules  required  for  such  a  conveyance, 
he  gets  both  the  legal  and  equitable  title,  it  is  a  perfected 
and  completed  transaction  even  though  not  based  upon  a  consider- 
ation. But  suppose  there  has  been  an  irregularity  in  the  deed  of 
conveyance  so  that  the  legal  title  does  not  pass  will  equity  say 
to  the  grantor,  you  intended  to  give  that  land  to  your  friend, 
you  did  what  you  supposed  was  sufficient  to  carry  out  that  in- 
tention, but  you  have  failed  because  you  have  not  observed  some 
formal  requirements  of  the  law,  and  therefore  equity  will  make 
you  a  trustee  of  the  l;.nd  for  the  benefit  of  your  friend,  and 
by  so  doing  you  v;ill  do  v;hat  you  intended  j.nd  wanted  to  do  and 
what  you  tried  to  do?  Equity  v/ill  not  do  this.  Equity  will  in 
accordance  with  the  weight  of  authority  only  enforce  complete  and 
perfect  transactions.  It  is  not  sufficient  to  justify  an  applic- 
ation to  a  court  of  equity  that  there  is  m.erely  an  inchoate 
design  to  create  a  trust,  that  design  must  have  been  put  in  com- 
pleted form,  V.Taenever  a  person  adopts  this  course,  najnely  con- 
veying the  legal  title  to  the  person  intended  to  be  benefitted, 
he  must  observe  all  the  forms  of  law,  otherwise  his  gift  v/ill 
fail,  A  court  of  equity  v/ill  not  perfect  an  imperfect  voluntary 
conveyance  and  vrork  out  of  the  situation  a  trust  relation  be- 
tween the  parties.  It  v/ill  not  do  so  because  there  is  no  consid- 
eration upon  v/hich  a  court  of  equity  can  base  its  action. 

Young  vs  Y.  Young(Illus  cases  page  380)  is  quite  a 


XVI.  EQUITY  JURISPRUDENCE.  JR.  78. 

tjTOQ  of  his  sons;  he  was  the  owner  of  certain  United  States  and 
town  coupon^'bonds  that  were  of  two  classes,  he  put  one  clas^  of 
"bonds  in  an  envelope  and  deposited  the  "bonds  in  a  safe  to  which 
the  sons  had  access,  the  other  bonds  were  put  in  another  envelope 
and  also  deposited  in  the  safe.  He  showed  these  envelopes  to 
the  wives  of  his  two  sons  and  said  that  they  were  intended  for 
his  sons.  There  was  no  douot  hut  that  he  intended  that  these 
"bonds  should  go  to  these  sons  upon  his  death  "but  auring  his  life 
he  continued  to  collect  the  interest  upon  the  "bonds.  At  one 
time  when  the  tax  collector  came  around  he  said  the  tcoc  on 
the  "bonds  should  be  assessed  to  his  sonc  as  they  belonged  to 
them.  But  during  his  life  they  were  in  his  control,  in  his  safe, 
and  in  his  hands,  no  instrument  of  title  passed  from  him  to  his 
sons.  The  sons  tried  to  sustain  the  transaction  in  two  ways, 

first  by  clai-iing  that  it  was  a  gif  t  ^  That  there  was  sufficient 
delivery  to  satisfy  the  requirements  of  the  gift.  The  court 
said  not  so  under  the  circumstances.  The  bonds  themselves  were 
not  delivered,  no  muniments  of  title  were  delivered  and  there 
is  no  gift.  Then  the  sons  claimed  that  there  was  a  trust  re- 
Ic'tion  existing  between  them  and  their  father  during  his  life 
growing  out  of  the  transaction  and  that  the  father  should  be 
held  by  the  court  to  be  a  trustee  of  the  bonds  for  the  benefit 
of  his  sons  during  his  lifetime.  The  court  said  no,  if  there  is 
a  gift  the  tv,o  positions  you  occupy  are  inconsistent.  If  there 
is  a  gift  there  is  no  trust.  There  is  nothing  in  the  whole  case 
to  show  that  the  father  held  those  bonds  for  the  benefit  of  his 
sons.  The  sons  therefore  failed  in  their  suit,  failed  simply 
for  the  reason  that  the  the  transaction  was  not  a  completed  one 
and  could  not  be  sustained  either  as  a  gift  or  as  a  trust. 

Dictation, 
It  is  well  settled  that  a  perfect  and  completed  trans- 
action will  be  recognized  and  enforced  in  equity  even  though 
it  is  purely  voluntary.  A  consideration  is  not  necessary  to 
the  enforcement  of  a  perfect  transaction.  If  one  desires  to  make 
another  tke  object  of  his  bounty,  he  may  do  so  in   ai^tiier  one  of 
three  wcys.  He  may  convey  the  property  directly  to  the  party.  If 
in  so  doing  he  observes  all  of  the  forms  of  law  a  title  vests 
in  the  grantee  even  though  there  be  no  consideration.  But  what 
is  the  result  when  there  is  some  irregularity  in  the  conveyance 
that  prevents  the  vesting  of  the  legal  title?  Will  the  court  -of 
equity  perfect  the  transaction?  By  the  weight  of  authority  it 
must  be  concluded  that  equity  has  no  power  to  perfect  an  imper- 
fect voluntary  conveyance.  But  equity  has  power  to  perfect  a 
conveyance  that  is  based  upon  a  consideration. 

Young  vs.  Yoimgdllus,  cases  page  380)80  N.Y.4  ,2. 

(Study  this  case  carefully)  ' 

In  re  Webb's  Estate(Illus.  cases  pc ge  385)  49  Gal.  541. 

Richards  vs.  Delbridge(Illus.  cases  pc.:;e  378)  L.R,  18  Eq.  11, 
(Study  this  case  carefully) 

Martin  vs  Funk(Illus.  cases  p^ ge  386)  75  N.Y,  134. 
(Study  this  case  carefully) 

Beaver  vs.  Beaver (Illus  cases  page  389) 

Bath  Sav.  Inst,  vs.  Hat horn (Illus,  cases  page  392)  88  Me.  122, 


XVI.  EQUITY  JURISPRUDENCE.  JR.  79. 

According  to  some  authorities,  however,  an  imperfect 
voluntary  trnasaction  may  "be  perfected  through  the  medium 
of  the  trust. 

Richrrdson  vs  Richardson  (Law  Reports  Equity  Cases  (3) 


page  686. 


Morgan  vs.  Ilalleson  TO  Equity(L.R.)  475. 


The  weight  of  authority,  hov/ever,  is  against  the 
doctrine  expressed  In  the  two  cases  atove  cited,  and  in  favor 
of  the  doctrine  heretofore  stated.   I  would  not  sya  however 
that  the  supreme  court  of  Michigan  if  the  doctrine  was  clearly 
put  tefore  t'.iem  as  laid  dovm  in  the  case  of  Richardson  vs, 
Richardson,  would  not  follow  it.  In  the  case  of  Ellis  vs.  Secor 
31  Mich.   185,  although  the  law  lai.d  down  in  that  case  is  not 
usually  followed,  ma.y   aid  you  when  in  difficult  straights.  I  do 
not  thin-',  the  lav;  laid  dovm  in  the  case  is  good  lav/o  The  facts 
were  these:  A  lady  \Tho  lived  in  Manistee  for  a  numher  of  years 
and  possessed  of  considerable  property  thatcame  to  her  in  one 
way  and  another,  she  hr.d  never  married  and  was  along  in  years, 
and  had  very  few  acquaintances  and  friends.  One  lector  Ellis 
had  attended  her  more  or  less  in  sickness  at  various  times  and 
had  "befriended  her  in  various  cases.  One  night  she  was  taken 
ill  and  in  the  morning  she  was  found  dead  in  her  room.  On  the 
table  at  her  side  was  found  a  slip  of  paper  with  these  words 
written  upon  it"I  wish  Dr.  Ellis  to  take  possession  of  all,  both 
personal  and  real  and  mixed,  I  am  so  sick  I  believe  I  shall  die, 
look  in  valise."   A  valise  was  found  and  it  contained  the 
securities  for  the  bulk  of  her  property.  The  intention  of  the 
woman  v/as  that  the  property  should  go  to  Dr.  Ellis.  The   Supreme 
Court  of  Michigan  said  thr-.t  he  was  entitled  to  it  under  the 
circumstances.  Judge  Cejnpel  gave  the  opinion  of  the  court  and 
took  this  position,  that  although  there  was  no  valid  assignment 
of  these  securities  for  the  reason  that  the  securities  were  not 
delivered,  and  no  instrument  of  assignment  executed  and  deliv- 
ered, yet  in  equity  the  title  to  that  property  must  be  recognized 
as  in  Ellis  for  the  reason  that  this  poor  woman  did  all  she 
could  under  the  circixmstances,  that  it  is  the  function  of  a 
court  of  equity  to  carry  out  the  intention  of  a  party  even 
though  the  intention  is  very  informally  expressed.  But  it  seems 
to  me  that  this  is  carrying  the  principle  beyond  the  bounds  of 
safety,  and  the  case  is  not  usually  recognized  as  authority  al- 
though it  must  stand  as  authority  in  this  state  until  over-ruled. 
Ellis  vs.  Secor  31  Mich  185. 
Dictation. 

According  to  some  authorities  an  exception  to  the 
general  rule  that  I  have  explained  to  you  is  found  in  case  a 
person  attempts  to  benefit  his  wife  or  children  or  others  dep- 
endent upon  him  but  through  some  irregularity  fails  to  convey 
the  legal  title.  In  these  cases  according  to  some  authority  the 
meritorious  consideration  takes  the  place  of  the  actual  consider- 
ation. 


-<■"»• 


XVI.  J^OUITY   JUHISPK-IDENC:^.    JR.  bO. 

In  favor   of  this   exception: 

Grangii'C   vs.    Arden   10   J.R.    292. 

8  >Torth  Carolina  250. 

Perry   on  Trusts  par.    95-107-109. 
Contra: 

Story  Eq.    par.    433. 

Dictationo 
The  other  two  vmys  are  v/here  property  is  conveyed 
to  a  trustee  for  the  "benefit  of  the  intended  donee  and  v;here 
the  ovmer  of  property  declares  himself  to  be  a  trustee  of  it 
for  the  benefit  of  the  intended  donee.  In  either  case  in  order 
that  the  transaction  may  be  recognized  anc"  protected  by  equity 
it  must  be  completed  and  perfect.  And  if  it  is  so  equity  will 
protect  the  donee  in  his  rights  e^ven  though  at  the  time  of  the 
creation  of  the  trust  he  has  no  knowledge  of  it,  provided  he 
accepts  t}ie  benefits  when  notified. 

I^ut  v;here  there  is  a  mere  intention  on  the  part  of 
the  owner  of  property  volvintary  to  create  a  trust  and  contem- 
plates further  acts  to  give  effect  to  the  trust,  the  trust  is 
not  completely  constituted  and  such  person  cannot  be  compelled 
to  complete  it.  In  Mtrtin  vs.  Funk  Church  C.J.  Says: "It  is 
clear  th&t  a  person  sui  juris,  acting  freely  and  with  full  know- 
ledge, has  the  power  to  make  a  voluntary  gift  of  the  whole  or 
any  part  of  his  property,  while  it  is  well  settled  that  a  mere 
intention  whether  expressed  or  not,  is  not  sufficient,  and  a 
voluntary  promise  to  r^ake  a  gift  is  nudum  pa.ctum,  and  of  no  bind- 
ing force.  The  act  constituting  the  transfer  must  be  consumated, 
and  not  remain  incomplete,  or  rest  in  mere  intention,  and  this 
is  the  rule  whether  the  gift  is  by  delivery  only,  or  by  the 
creation  of  a  trust  in  c-,  third  person,  or  in  creating  the  donor 
himself  <  trustee.  " 

dictation. 
In  case  the  legal  title  is  not  assignable  by  the 
owner  thereof  it  will  be  sufficient  if  he  does  all  he  can  to- 
wards making  an  assignment,  equity  will  recognize  his  efforts 
as  expressing  his  intention  and  will  perfect  the  transaction. 
If  the  property  is  equitable  end  not  legal  a  voluntary  transfer 
of  it  may  be  made  provided  the  necessary  forms  of  transfer 
c-re  observed, 

Pomeroy's  Eq.  Vol.  2,  par  999. 

P.erry  on  Trusts  par.  102. 


■oOo 

Nov.  14. "02. 


r/II.  EQUITY  JURISPRUDEITCE.  JR.  81. 

liECTIIRE  XVII. 

--0— 
Ve  were  considering  the  different  ways  in  which  ex- 
pressed trust  Tidj   "be  created.  I  tried  to  impreus  upon  you  that 
no  si^ecial  formality  is  required  for  the  c  reation  of  an  ex- 
pressed trust.  A  trust  inay  in  most  states  "be  created  by  parol 
but  when  you  come  to  prove  the  trust  you  must  show  a  writing.  That 
writing  although  usually  a  formal  document  is  not  necessarily 
so,  but  it  must  however ,  indicate  certain  things:  First,  it 
must  show  above  all  an  intention  to  create  a  trust;  Secondly, 
the  property  to  be  affected  by  the  trust;  Thirdly,  it  must  show 
the  parties  to  be  benefitted  by  the  trust;  Fourthly,  it  must 
show  in  a  general  way  what  the  trust  is.  But  all  of  those  things 
may  be  shovm  by  a  very  simple  docvunent.  A  trust  is  usually  de- 
clared in  the  instrument  by  which  the  legal  estate  is  conveyed, 
but  it  may  be  created  in  an  instrument  subsequent  to  the  convey- 
ance, it  may  be  declared  in  a  mere  memorandum  or  letter  or  it 
may  be  declared  by  a  pleading.   It  is  not  necessary  that  the 
words "trust  or  trustee"  be  used  although  usually  found  in  a 
document  of  that  kind,   I  said  in  the  last  lecture  that  an 
expressed  trust  might  be  inferred  by  construction  of  the  vrfaole 
instriiment,  and  this  is  the  subject  I  wish  to  taUc  upon  this 
morning, 

TRUSTS  IaTFE:^;R:ID  by  construction  of  TIIE  IlTSTRmSlTT 

Usually  the  insti-ument  frcn  whic.\  an  expressed  trust 
is  inferred  by  construction  is  a  will,  but  a  trust  may  be  in- 
ferred from  B.   contract  or  a  deed.  A  vill  is  made  in  which  you 
cannot  find  a  single  clause  to  say  directly  that  a  trust  lias 
been  created;  you  cannot  find  a  single  line  or  a  paragraph 
tlat  if  itsGlf  raises  a  trust,  but  when  you  take  the  whole  will 
into  consideration  and  look  at  "he  will  as  an  entirety  and  read 
it  in  the  light  of  all  the  circumstances  that-  surround  the  tes- 
tator at  the  time  of  the  making  of  the  will  it  is  manifest  that 
the  testator  intended  to  create  a  trust.   V.herever  this  conc- 
lusion is  reached  after  the  reading  and  construction  of  the 
entire  will  we  have  what  is  termed  a  trust  inferred  by  the  con- 
struction of  the  instrument  and  this  is  an  expressed  trust.  Some 
a.uthors  speak  of  it  as  an  implied  trust.  Perry  in  his  work  on 
Trusts  so  considers  it.  I  do  not  think  such  a  classification 
is  advisable  for  if  we  use  the  term  implied  trusts  to  this  kind 
of  a  trust  we  are  liable  to  confuse  these  ti-ust  with  resulting 
and  constructive  trusts,  trusts  that  the  law  raises  from  the 
surrounding  circumstances  or  in  order  that  justice  and  equity 
may  be  done.  These  trusts  are  not  trust  raised  by  law,  they  are 
trust  raised  by  the  party  making  the  insti-ument  through  the 
language  he  has  used  as  contained  in  the  four  corner  of  the 

instrxAment , 

LICTATIOIT. 
Trusts  may  frequently  be  inferred  by  construction  of  the 


X^/II.  EQUITY  JUKISPRHDEN-CE  .  JT;.  82. 

entire  instrument.  V/liile  there  is  no  part  of  the  instriiment 
that  distirictly  and  definitely  provides  for  the  trust  yet 
when  you  consider  the  instrument  as  a  whole  it  is  perfectly 
apparent  that  the  testator  intended  a  trust.  This  is  not  an 
implied  trust  occause  it  is  not  raised  "by  the  law,  it  is  an 
expressed  trust  created  by  the  party. 


I  wish  to  impress  upon  you  that  in  order  that  we 
may  have  what  is  known  as  a  -crust  inferred  "by  construction  of 
the  instrument,  the  trust  must  arise  out  of  the  instrument 
Itself,  The  intention  to  create  a  trust  must  "be  expressed  with- 
in the  four  comers  of  the  instrument.  You  may  know  that  the 
testator  intended  to  create  a  trust  'out  when  you  come  to  read 
the  instrimient  you  find  there  is  no  trust  expressed  therein, 
under  those  circiAmctances  a  trust  will  not  he  inferred,  even 
though  it  he  perfectly  well  known  that  the  testator  intended  to 
create  a  trust.  That  intention  may  he  gather  from  conversations 
that  people  have  had  v/ith  him,  but  you  cannot  prove  the  intent- 
ion to  create  the  trust  by  outside  evidence.  The  intent  must 
appear  somewhere  within  the  four  corners  of  the  instrument.  I 
do  not  mean  to  say  by  that,  that  you  cannot  resort  to  parol 
evidence  at  all,  I  mean  you  cannot  resort  primarily  to  p.-rol 
evidence  to  show  the  intention  of  the  party.  You  may  show 
by  parol  evidence  the  situation  of  the  testator,  how  his  pro- 
perty was  circumstanced;  shov;  his  relation  to  the  different 
parties  and  what  would  be  the  natural  disposition  of  his  property, 
but  his  final  intention  and  f ina.1  parpose  is  centred  in  the  in- 
strument« 

Dictation, 

Trust 3  of  this  kind  must  be  found,  if  at  all,  in 
the  instruments  The  intention  of  the  party  to  create  a  trust 
cannot  be  shown  by  parol  evidence.  You  may,  however,  show  by 
parol  the  situation  of  the  parties  interested,  of  the  property 
in  controversy,  may  show  whatever  in  fact  will  place  the  court 
as  nearly  as  possiole  in  the  position  of  the  testator. 


I  am  going  to  explain  the  different  circumstances 
under  which  trusts  are  usually  inferred  by  construction  of  the 
instnjanent,  I  have  thought  best  to  divide  the  field  into  three 
classes. 

DICTATION. 

Truscs  may  be  inferred  by  construction  of  the  instru- 
ment, first,  from  powers  and  authorities  given  to  the  grantee 
in  case  of  conveyances  and  agreements  between  living  parties  or 
conferred  upon  the  executor  in  case  of  wills.  If  the  le.jal 
title  is  necessary  in  order  that  the  party  or  executor  may 
execute  the  powers  conferred  a  trust  will  be  raised  and  the 
legal  title  put  in  the  party  or  executor,  "herever  an  executor 
is  clothed  with  authority  in  regard  to  real  property  the  exer- 
cise of  which  requires  the  legal  title  in  him,  he  will  be  held 
by  a  court  of  equity  to  be  the  leggtl  owner  of  the  property  as 
trustee  for  the  purpose  of  executing  the  pov;ers. 

Tobias  vs.  Ketchum(Illus.  cases  page  367) 
(32  N.Y.  319) 


i.  •.' .'. :    . 


XVII.  EQUITY  JUP.ISPHUDEl^^CE.  JR.  83. 

An  expressed  tinist  may  te  inferred  "by  construction 
of  the  instrument,  seconrly,  where  property  is  given  to  a  parent 
or  other  persons  standin,{^  in  the  relation  of  parent,  accompanied 
"by  directions  in  regard  to  the  suptjort  or  maintenance  of  his 
family  or  children,  Illustiiation :  Suppose  property  is  left  by 
will  to  a  parent  .  v/ith  the  surcestioxi  that  the  parent  use  the 
property  for  the  education  of  his  children,  such  a  suggestion 
which  is  iiofc  imperati^^e  v/ould  not  raise  a   .  ast  and  the  parent 
takes  the  absolute  title,  but  if  the  expressiuxi  in  regard  to 
the  education  of  the  children  takes  on  an  imperative  quality 
so  that  it  is  more  than  a  mere  suggestion  or  advice,  in  other 
words  if  it  amounts  to  f:  direction,  a  trust  is  at  once  raised. 
The  parent  does  not  take  the  absolute  title  but  takes  the  title 
that  ib  encumbered  by  this  trust,.  In  the  case  of  Smith  vs. 
Bowen  35  !T<,Yo  83.,  the  testator  devised  by  will  r.s  follows:  "All 
my   estate  both  personal  and  real  of  which  I  shall  die  seized 
and  •i)ossessed,  and  ?/hich  is  not  hereinafter  specified  as  given 
to  my  dear  children,  I  give  to  my  beloved  wife  to  be  used  and 
disnosed  of  at  her  discretion  for  the  benefit  of  herself  and 
my  daughters  A,E,  and  C."  Held:  that  language  of  that  kind 
created  a  trust  for  three  fourths  of  the  estate  in  question  for 
the  benefit  of  the  three  daughters ^ 

In  the  case  of  Young  vs.  Young  68  N.C,   309  a  will 
read  as  follows:  "To  my  beloved  wife  I  give  all  my  estate,  real, 
personal  and  mixed,  to  be  managed  by  her(that  she  may  be  enabled 
the  better  to  control  and  manage  her  children)  to  be  disposed 
of  by  her  to  them  in  that  manner  she  may  think  best  for  their 
interest  and  her  own  happiness, Held,  to  be  a  gift  to  his  wife 
ill  trust,  not  for  herself  nor  for  the  children  alone,  but  fcr 
both,  to  be  managed  at  her  discretion  for  the  benefit  of  her- 
self and  children. 

In  Taft  vs.  Taft  130  Mass,  461,  a  'cestator  devised 
to  his  daughter  the  use, income  and  improvement  of  all  his  real 
and  personal  estate,  with  the  pov;er  to  sell  the  real  estate  or 
to  cut  and  sell  the  wood  and  timber  thereon,  and  to  devote  the 
profits  of  such  sales,  as  well  as  the  income  of  the  property,  to 
the  maintenance  and  support  of  herself  and  her  children,  and  with 
the  privilege  of  disposing  of  any  part  of  the  profits  derived 
from  the  sale  of  the  land  or  from  other  sources  in  such  way 
as  she  may  think  best.  /leld:  that  the  will  cfeated  no  trust 
for  the  benefit  of  the  children  but  that  they  took  contingent 
remainders. 

Dictation. 

Expressed  trust  may  be  inferred  y  construction  of 
the  instmament,  secondly,  v/here  property  is  given  to  a  parent 
or  other  person  standing  in  the  relation  of  a  parent  accompanied 
by  directions  or  expressions  in  regard  to  the  maintenance  of 
his  family  or  children.  If  these  expressions  are  mere   reccomen- 
dations  no  trust  will  be  raised,  the  parent  will t  ake  the  pro- 
perty absolutely.  If,  however, theyhave  an  imperative   or  are  in 


T!I1,  EQUITY  JlffilSPPiXmENCE.  JR.  64. 

fact  directions,  then   a  trust  vlll  be  raised. 
Perry  on  Trusts,  par.  117-119. 
^omeroy,  Vol.,  Z,    par.  1112, 
Smith  vs.  Bov;en  35  N.Y,  83. 
Young  vs.  'r'ounr,  68  :'oCo  309. 
Taft  vs  Taft,  130  liass  461. 
Thirdly:  a  t-ust  nay  1: e  in-^erred  uy  construction  of 
the  instrument,  where  a  testator  has  made  use  of  precatory  v7ords 
in  connection  with  a  devise  for  the  "benefit  of  strangers.  In 
the  case  of  luiight  vs.  "jiight  3  Eeavans  148,  the  meaning  of 
the  expression  "  irecatory  word"  is  very  clearly  explained.  "As 
a  general  rule  it  has  heen  laid  dovnij  that  v/hen  property  is 
given  absolutely  to  any  person,  and  the  same  person  is,  "by 
the  giver  who  has  pov/er  to  command,  recommended,  or  entreated, 
or  wished,  to  dispose  of  that  property  in  favor  of  another,  the 
recor/iendation,  entreaty,  or  wish  shall  "be  held  to  create  a  trust, 

First,  if  the  words  are  so  used,  that  upon  the  whole 
they  ought  to  "be  construed  as  imperative. 

Secondly,  if  the  su'bject  of  the  recc  omen  elation 
or  v;ish  "be  certain;  and, 

Thirdly,  if  the  o"bject  or  person  intended  to 
have  the  "benefit  of  the  rec commendation  "be  also  certain,  " 

DICTATION. 
Trusts  may  "be  inferred  "by  construction  of  the  instru- 
ment, where  a  testator  has  made  use  of  precatory  words  in 
connection  with  a  devise.  These  words  may  "be  used  in  connection 
v/ith  a  devise  for  the  "benefit  of  a  ■wife  or  children  or  strangers. 
"Under  such  circumstances  a  trust  will  be  raised,  first,  where 
the  words  are  imperative  in  the  notion  tha.t  they  convey.  Secondly, 
the  su'bject  of  the  reccommendation  must  "be  certain.  Thirdly, 
the  persons  who  are  to  be  benefited  thereby  must  be  clearly 
indicated. 

An  early  leading  case  upon  this  subject  is  Knight 
vs,  Ijiight ,  3  Beavan  148, 

Pomeroy,  "Vol.  2,  par,  1016, 

DICTATION. 
The  attitude  of  the  courts  in  regard  to  trusts  aris- 
ing from  the  use  of  precatory  v.-crds  x  has  during  modern  times 
changed  materially.  I'onnerly  the  courts  were  inclined  to  raise 
a  trust  out  of  the  mere  use  of  precatory  words.  At  the  present 
time  the  precatory  words  must  always  be  construed  in  connection 
with  the  entire  instrument. 

Pomeroy  Vol.  2,  par.  1014-1017, 

Eispham  par.  71-76. 

Perry   on  Trusts,    par,    112-115. 

Warner  vs,3ates( Illus.   cases  page   370) 

(98  liass    274) 
Hess   vs.    Singler    (Illus   cases   page   373) 

(114  llass,    56) 

Clay  vs.   ¥ood)Illus   cases  page   375) 

(153   N.Y.    134) 

oOo Nov.    21st    1902. 


rjc 


'III.  JIQUITY  JIB'ISPI:!!.  jIlTCE.    JR.  85, 

LECTURE  ran, 

— C-- 

In  iny   last    lecture    I    finished  ;:,11  that   I   desire    to 
y   in   x-e;':,ard   to   the   creation   of  expressed  trusts,    I   v;il].  nov/ 
devote    some   time   to   a  c  onsideratioii   of  the   different      classes 
of   expressed   trusts^   ?ocpressed  trusts   are  pr^  :--:rly   divisible, 
first,    into   two   general   clacsec,    iiar.ely,    Pfl   ATE   ■:  na  FTHLIC   trusts. 

T. 'ivatc    trust,    a,3   the   name    indicates,    is   a  trust   that    is 
created  for  the   "benefit   of   a  particuL.r  person  or  particular 
^ersonso   The  "beneficiary      in  a  private    trust    is  alv/ays   ascertain- 
ed;  and    definite,    if   the  "beneficiary   is   not   ascertained  and   def- 
ini' a   the    trust   must    fail   for  we    cannot   have   a  private   trust 
•.vithout    a  '.veil  ascertcined  cestui   que   trust.   The    secona   class 
em'braGes   public   trust,    a  public   trust    is    sometimes   called  a 
C:i£-.rita"ble   t'-ust.    One    of •  the   distint.uishing   characteristics   of 
a  public    or  charitable  trust   is  founc    in  the   fact   that   the  'oene- 
ficiary   o^-  banef iciaries   are   not    ascertc.ined  persons,    the   bene- 
ficiaries  are    alv-rys   a   cl.',35   thot    are   chrnoing.    The  beneficiaries 
may  "be    canposed   of   a  certain   set    of  persons   one  year  anc    a.iother 
s-^t    the  next  year.   A  pu"'clic   trust    :b    one  ^/herein  the  beneficiary 
is  imcertaine    The   trust  m&y  he   for  the  benefit    of  the  poor   of 
a   certrin  parish,    or   for  tlie   "benefit    of   the   need'y  and   deserving 
students   of  a  certain  university,    or  for    the   purpose    of  bringing 
water   into    t.  town  for   the   use    of   the    inlic-'uitrats ,    these    are   ex- 
ainples   of  public    or   char:tahle   trusts o   The   .     /sons   to  "be   bene- 
fitted by  the    trust   are  ■'uiascertc  rned  t    Another  characteristic 
that    I  may  mention   is   the    fact   that    a  p'^'olic    or  clia'-itable   trust 
need  not   he    so   definitely   created  as   a  private   trusty    If  a  per- 
sonr>   intends   to   create    r    trust   for    the   benefit    of  the  public   or 
for  charity  even  though  that   intent    is  not    fully  and  clearly- 
set   forth  in  the   instrvjnent,    the   courts,    by   c    rule    of   the   corimon 
la,w,    knovm  as   the   Cy  pres   doctrine,    will  carry  out,    as  far  as 
possible,    the    intent    of  the   party,    enr."    raise   a  public    or  charit- 
a.ble   trusty 

Dictation , 
All  Exnressed   trusts   are   divisible,    first,    into 
PRIVATE   and   secondly,    into  PL3LIG    or  CK/i^ITAELE  TRUSTS.    The 
T^rivate   trust    is   one   created  for  the  benefit    of  certain  and 
designated  persons,    in  public    or   charitable   trusts   the   benefic- 
iaries  are  unascortainable,    uncertain  ar  fluctuating. 
Pcmerpy  7c.    2,    987,1018. 
Bisphani's   Princo  Yq^    I'O, 

Expressed  private   trusts   are   divisible    into  two  kinds, 
namely,    EXPRESS_^D  PASSI'\/E   TRUSTS   and  ^TPRESSTTD   ACTI'/E   TkUSTS. 
'2he   esgiressed  passive   trust   is    sometimes   called  a  simple    trust 
ana   scTletimes   a  pure    ^rust,    v/ile   the   expressed  rctive   trust 
is    ^a.ietimes   spoken   of  as   a   special  trust. 

V'ith  regard  to   expressed  passive   trust,    I    should 
suc^gest    that    it    is    not   met  with  very   frequently  as   attj-.ched 
to   real  property,    in  tMs   country.   The   reason   is   that    in  many 


..-'.^iil.  E^::irY  jutisprut.eitcp.  cr->.  86. 

of  "r^e    'States    f5T.;.tutos  hT.ye  "been  passed  forljlc^  "ing  the   creation 
ci    ex^ressod  passive   trv.sts.   /los   on  acco-ant    of   our  notion  in 
re,;:C'.rd  to    z\-^.   holdin,;   of   land,   passi^re   trusts   are   naturally  not 
resorted   ^:o.    The    expreseed  passive   trust    is  more   frequently 
resorted   to   in  "njlajid  by  reason  of  the   fact   that   they  have 
v;het    is   icno'vTri   as  marriage    settlei.'.ents ,    and  throu.fvh  the    instru- 
mentality of   the    expressed  passive  trust   keep  property   in  a 
■_:iv9n   line    or  fajnily.   The  pclic--   of  this   coxmxry   is   to   keep   tho 
land   distributed   among  the   people   as  much  as  possible,    so  the 
pessive  trust    is   not    often  met   with  even   in  those    states   where 
it    is   not   rirohibited  by   st     ,ute.    In   the  passive   trust   the    legal 
title    is   vested  in   the   trustee,    but   he   "las   no   duties   to   perfoniii 
he    is    simply  the   dei)ositc,ry   of   the    legc..l  title.   He  has  no   ri:_.ht 
tc  a.ct    in  regard  to   the   title  v;ithout   the   consent    of  the 
cestui    que   trust,   has  no   right    of  possession,    has  no  right   to 
control  the  possession,    the   cestui   que   trust    is  usually   in  poss- 
ession  of   tJie   •orcperty   and  to   all  apearances    is   the    owner   of 
the  property,    but   there    is   this   outstanding  naxed  lege  1   title 
in  the   trustee „      If   the   cestui   que   trust   desires  to  bring  an 
action   in  t?    court    of   lav;  he   is  bound  to  use   the   ncjne    of   the 
trustee   bee.  use  the    le.:^al  title   rests   in  him  but   the    trustee 
c   nnot    refuse   the   use   of  his   name   and  has  no   control  whatever 
c.  er   the  proceeding-,    the   function   of  the   trustee    is  merely   a 
foi~mal   one.    In  this   country  c.lth0Ui:;h  v/e    do   :iot  meet   v/ith  these 
trusts    in   re'_i  rd  to    rei  1  property  very   often,    it    is   not    unfrequent 
that   v/e   cone   across   them  in  re._ard  to  personalty.   ?or  example 
a  person  depoiiits  money   in   a  b-.  nk  for   the    benefit   of  the   cestui 
que    trust,    the   bc.nl:  holds   the   naxed  le/d   title   to   that  money. 
The   entire   control   of   the   rioney  is    in  the   hands   of   the  person 

■0    -irs  nade    the   deposit    -i-iceptin^    so   far  as  he   has   given   con- 
f-cl   to    the    cestui  -que   trust. 

Eictc^ticn. 

The    expressed  passive    trust    in   regard  to    realty   is  not 
frequently  met  with   in  t:iis  countr:  .    Such  trusts   are  prohibited 
in  -nosi    stctes  by   stetute.    In   expressed  passive   trusts   the 
trustee    is   simply  the   depositar;:,'-    of   the    let.:al  title,   h'e   has   no 
duties   to  perform,   he    is   entirely   subject   to   the   ccntrol  of  the 
beneficiary,    \-ho  usiially  has   possession   of  the   re    Ity.    In   legal 
cctions  tJ-LO    trustee's   name  must   be   used  but   he   has  no   control 
of  the   action  that   being   left    entirely  to  the   beneficiary.   Me 
mav  hj  ve   passive   trusts   in  personi-lty  as  well  os    in  realty. 
'>omercy  ".'ol.    2,    988,990. 

Perr;^'  on  Trasts,  par.  18,520,521. 

:"irkl-nd  vs.  Coxdllus  cases  pcge  397) 
(94  111.  400) 


An  exT)rcss5d  active  trust  is  one  in  which  the  trustee 
is  charged  with' active  duties  in  regard  to  the  trust  property. 
The  trustee  becomes  the  active  person  in  re^.-ard  to  the  property. 
These  duties  may  arise  in  various  v;ays',  they  may  arise  from 
express  provision-  en^jmerated  in  the  instruraent  creating  the 
trust.  It  is  always  competent  for  a  person  creating  a  trust  to 


X7III.  EOTJITY  .TimiSFniDElTCE.    JR.  87. 

desifn&te  what    s'lU.ll  "be   the   c^uties   of   the    trustee    .   There   arc 
some   trusts  where   the   duties    of   the   trustee    pre   re<~ulrted  by 
sta.tute,    rs   in   c^se    o*'   an   r  A -inistrator.    In   case    of   r  n  executor 
npmed   in   a  will   duties  ir.ay  be   added  rot   provided  for  by 
statute,.    If  the   duties  are   not   provided  for  in  the    instrument   or 
by   statute,    then  the   trustee   when   in   doubt   how  he    should  pro- 
ceed,   should   apply   to   a   court    of   equity.        trustee    should  never 
lake    stetfR    in   administering   a   trust    estate   \7here   his   duties 
arc   not    fully   set    forth  in  the    instrunent    or  pointed   out    by 
r^tatuto  without   appl^'-ing   to  a  court   and  getting   directions   as 
to  hOTif  he    should  act. 

LiCbct icn» 
In  case    of      active   trusts   the    trustee  has   active 
duties   to  perforrac    These   duties  may  be    set   forth  in  the    instru- 
ment  by  \7hic-i   the    trust    is  created  or    in  some    statute    or  they 
r.ay  be    specifically  provided  for  by  the    court    of   equity., 

In  case    of   expressed   active   trusts   the    letial 
title    is    in  tlie   trustee    ^;.s    is   the   ]ossession  usually  and   the 
legal  title  will  alvay^-   by  the    court    of   equity  be   held   sufficiently 
extenced  to    enable    the   -cri^stoe   to  perform  all  the    duties    iiupcsed 
upon  jiim, 

Ii^irkland  vs   Coxdllus   cavses  pa^e   397) 

Porry  pn  Trusts   312. 

•Spence  Eq.    Juris,      pages   496-497. 

If   the    trustee   fails   to  perform  the   duties   imposed 
upoii   him  by  the    instr'jment   the   cestui    que   trust  has   the   right 
zo  compel  him  to  do   so. 

Dictation. 

Although  the    interests    of   the   beneficiary   in   the 
expressed  cictive   trusts  are   more   circumscribed  than   that    of 
the  benef  ■.ciary   in  the    expressed  passive   trusts  yet,    the   bene- 
ficiar;/-   always  has   the    right   to   call   the   trustee   to    account,    if 
in  his   judgm.ent,    the   trust   duties   are    ..ot   being  properly  per- 
formed.   This  ric>,y  be    done   by  a   special  application  to    the    equity 
court,    or  the    question  may   come    up    in   connection  with  the 
settlement    of  the   trustee's   account, 

Expressed  active   trust   my^  be    created   for  various 
purposes o    They  may  be   crea,ted  for   any  purpose   not   -unlawful.    In 
the   absence    of   statute   there    is   no   limitations   upon  the    extent 
of  expressed  active    trust,    excepting  the   limitation  I  hc-.ve 
suggested.   You  cannot    create    a  trust   for  purposes   that   vrould  be 
contrary   to   law  or   to   public   morals.   ~ut    in  many    states  you 
will  find   that   the   power  to    create   expressed  activ<^   trusts  has 
been   lim.it ed  and   controlled  by   starute. 

Dicta,ticn. 

Expressed  active  trusts  \:'ien   there  is  no  statutory 
lirdtations  may  be  created  for  ar^'  purpose  that  is  not  unlav;ful. 
The  trusts  usually  met  with  however,  may  be  grouped  into  the 
following  classes:  Eirst,  those  that  are  created  for  the 
purpose  of  having  the  property  conveyed  to  some  desi;jnated  per- 
son. 


::\^III.  EOTJITY  JUF.ISPRir'^,NCE.  JR.  86. 

Secondly,  those  thrt  ;-re  ci^oated  for  the  purpose  of 
hcTing  the  property  sc"d  and  the  proceeds  distributed  as  in 
the  case  of  assi;,:nment3  for  the  benefit  of  creditors. 

Thiraly,  trusts  created  for  the  purpose  of  accumulat- 
ing the  property  and  investing  the  same  and  the  profits  for 
certain  designated  purposes.  Trusts  of  this  kind  must  not 
violate  the  statute  in  regard  to  perpetuities. 

Tne   fourth  glass  is  a  very  large  class  embracing  all 
those  cases   where  the  trust  is  created  for  the  pur-  ose  of 
having  the  tru.stee  handle  the  property  and  ma.ke  what  he  can 
out  of  it  and  pay  over  the  rents  and  profits  to  a  designated 
persons,  to  the  widow,  chilcren,  etc. 

Dictation. 

yourth  class,  those  trusts  in  which  the  trustee 
handles  the  property  and  aistributes  the  proceeds  as  fa,st  as 
zhey    are  received. 

Trusts  in  the  t'-ird  and  fourth  class  usually  embrace 
trusts  i-i  the  first  c:_ass  because*  there  is  almost  always  a 
provision  in  a  trust  of  the  fourth  class  for  a  conveyance  of 
the  corpus  of  the  pi'operty  at  the  termination  of  the  trust  to 
tlie  persons  entitled  to  have  it.  Although  trusts  of  the  first 
class  are  not  frequently  met  with  as  separate  ana  distinct  we 
do  meet  with  them  as  com.bined  with  other  trusts. 

T^omeroy  Par.  991,  992. 

?Tov/  you  have  in  mind  what  a  passive  trust  is,  what 
an  active  trv.st  is,  and  hp,ve  found  out  how  these  trusts  may 
be  created,  j^jiother  subject  that  is  most  alwa.ys  discussed  in 
connection  with  expressed  trusts  for  the  reason  that  it  is 
closely  allied  to  it,  particularly  since  the  legislation  that 
has  regulated  trusts  by  statute.  I  refer  to  the  powers  in 
trusts  that  ai"e  closely  allied  to  expressed  active  trusts.  This 
is  a  subject  of  a  g- od  deal  of  practical  imipcrtance  and  unfortun- 
ately a  subject  of  a  'jcod  deal  of  oif ficulty.  A   power,  speaking 
generally,  is  an  autr.crity  given  to  a  person  to  do  something  in 
regard  to  property  the  legal  title  of  which  is  in  another.  There 
are  various  kind's  of  powers,  pure  powers,  naxed  pov/ers,  vov;ers 
coupled  with  an  interest,  powers  of  a.torney,  etc.  The  powers 
that  I  v:ish  to  discuss  tn  this  connecction  or  mere    or  naxed 
pov/ers  and  pov/ers  in  trust.  A  mere  or  na.ked  pcv/er  is  an  authority 
conferred  upon  ,  person  to  do  something   in  regard  to  property 
the  lega.l  title  of  v/hich  is  in  another,  conferred  in  such  lan- 
"M^re   that  its  executions  is  discretionary.  A  m.an  by  will  con- 
fers upon  his  wife  authority  to  sell  and  dispose  of  certain 
real  property  and  distribute  the  proceeds  among  a  certain  class 
of  persons,  but  the  autjiority  is  conferred  in  such  langua  ,e 
as  to  p?rmit  the  wife  to  sell  or  not  to  sell  just  as  she  fit. 
The  benefician^  cannot  enforce  his  right  in  any  court  because 
he  has  no  right  until  the  power  is  executed  and  the  execution 


xrrn.  eouity  jir:isPRu;-:^;rc!j.  jr,  b9. 

of   t>ie  po-..-er   is   pMre^y      .3cr?tionary  vdth  the   donee    oi    ulie 
^O'-er.    '^he   ^onae   of   ilxe  po\ -i-   is  t^-e    one   that    is   tc   execute 
t;-'.e  povrer, 

Dictc-tion. 
Po77ers   c'.re   of  various  Icino.s,    >ut    those  tliat    concern 
LIS   in  tms   connection  are  mere    or  naxsd  povers   end  powers   in 
trust.   J   mere    or  nr.xed  _power   is   cV    fuf-^ority  given  to  s   person 
to   do    sojr.ething   in   re^-ard  to  property  the   lecal   title   of  which 
is   in   ajiother  conferred  in   such  l.an,^,u..  ,e   that   its   execution 
is   discretiont'ry.    A  mere    or  naxed  pov/er   is   /urely   discr:  tionary. 
Its   execution   cannot   he   ccmpelled  hy   the  heneficiary  there   under. 


■  0 :'ov.    ;:ist   1902, 


"  i:  .  .'OUITY  JURISPRUTiENCE.JR.  90. 

UJICTURE  5aix. 

I  was  talking  about  the  subject  of  powers   anc  sucGested 
that  t  lie  subject  is  one  that  is  closely  connected  v.-ith  the 
subject  of  trusts  particularly  in  view  of  the  legislation  we 
find  in  the  several  states  upon  th3  subject  of  trusts.   As  I 
will  explain  a  little  later  in  the  hour,  trusts  have  been  regul- 
ated by  st&tute  in  some  of  the  states,  and  under  certain  cond- 
itions you  v.'ill  find  t}iat  powers  in  trusts  are   permitted  to 
take  the  place  of  trusts.   As  I  recollect  I  had  f^iven  you  a 
definition  for  a  mere  or  naked  DOwer.  The  central  idea  is  that 
it  is  an  authority  conferred  upon  some  one  to  do  something  in 

regard  to  property'-  the  le~al  title  of  the  -nrcperty  being  out- 
standing., in  another.  But  this  authority  is  conferred  in  such 
a  way  that  the  donee  of  the  power  ma.y  exercise  the  power  or 
not  as  he  sees  fit,   ''Tien  the  language  of  the  deed  or  v.'ill  ,as 
the  case  may  be,  shcrs   that  the  intention  of  the  ovmer  of  pro- 
perty v/as  to  confer  a  power  that  may  or  may  not   be  exercised 
at  the  v;ill  or  discretion  of  the  donee  of  the  power,  that  is 
a  mere  or  naked  pov/er  and  the  beneficiary  cannot  compel  the 
donee  of  the  pov/er  to  exercise  the  pov/er. 
Perry  on  Trusts,  ps-.r.  248. 

."  power  may  be  coupled  v/ith  a  trust.   The  power  in 
trust  is  analagous  to  trusts  in  many  particulars  but  it  is  to 
be  distinguished  from  it.  In  the  case  of  a  trust,  we  have  a 
trustee;  in  case  of  a  power  in  trust  vie   have  a  conee  of  the 
power;  in  case  of  a  trust  we  have  a  cestui  que  trust;  in  the 
case  of  a  pov;er  in  trust  we  have  a  beneficiary;  in  a  trust  v/e 
have  property  that  is  the  subject  matter  of  the  trust;  in  case 
of  a  power  in  trust,  \7e  have  a  po\.'er  that  is  the  subject  of  the 
trust.  The  title  to  the  property  in  case  of  a  power  in  trust 
is  never  in  the  donee  of  the  powsr.   The  title  to  the  property 
lies  outside  in  someone  else.   The  subject  matter  is  not  in 
the  property  but  in  the  power  v/hich  is  conferred  in  imperative 
terms.  A  power  in  trust  is  very  pointedly  defined  by  Pinch  J., 
in  the  case  of  Delaney  -s ,  l!cCormackS(  &s:.T.Y,  174)-  "A  power  to 
be  exercised  by  the  grantee,  not  at  all  for  his  ovm  benefit 
but  wholly  and"  entirely  for  the  benefit  of  some  other  person 
or  class  of  persons,  is  necessarily  exercised  by  such  grantee 
in  c.  trust  canacity.  The  element  of  trusx  inheres  in  its 
substance  and  is  its  essential  and  vital  characteristic," 

Dictation, 
The  power  in  trust  is  distinguished  from  the 
r.ere  power  in  that,  it  is  imperative  and  not  discretionary.  It 
is  analagous  to  the  trust  proper  but  notwithstan.'ing  this  it 
differs  fi-om  it  in  some  essential  particulars.  The  pov/er  in 
trust  is  distinguished  from  the  trust  in  this,  that  in  the 


XXI7.  EQUITY  .TUP.ISPRUDEi;CE.  JR.  -gi. 

latter  the  trustee  holds  the  legal  title  for  the  benefit  of 
the  cestui  que  trust,  in  the  former  the  legal  title  is  out- 
standing in  a  third  person,  and  the  trustee  h?s  authority  simply 
to  convey  or  deal  with  the  property  conferred  by  imperatire 
language.     Definition:  A  pov/er  in  trust  is  authority  to  dispose 
of  property,  the  lej.al  title  of  v/hich  is  in  another,  the  auth- 
ority being  imperatively  conferred. 

Delany  vs.  McCormackdaius ,  Cases  399) 
(88N.Y.  174) 

The  duties  of  the  conse  in  case  of  the  power  in    ' 
trust  are  conferred  'in  imperative  language  so  he  is  bound  to 
perform  them.  He  has  no  discretion,'  he  must  perfom  the  duties 
that  are  imposed  upon  him  exactly  as  they  are  outlined  in  the 
instrument  by  which  they  are  imposed.  This  statement  should 
be  modified  somevirhat .   He  has  no  discretion  ;7hether  he  shall 
perform  the  the  power  and  the  beneficiary  can  go  into  a  court 
of  equity  and  compel  him  to  exercise  the  power.  But  he  may  have 
discretion  in  the  way  he  shall  perform  the  power.  Discretion 
of  that  kind  is  frequently--  given  to  the  donee.   He  may  have 
the  right  to  use  discretion  as  to  the  classes  that  are    to  be 
taken  into  consideration  in  the  distribution  of  the  proceeds 
of  the  power.  In  such  cases  the  imperative  quality  has  simply 
to  do  with  the  exercis  of  the  power.   Eut  if  he  falls  to  per- 
form an  imperative  power  and  a  beneficiary  under  the  power  is 
required  to  go  into  a  court  of  equity  to  compel  the  peformance 
of  the  power,  a  court  of  equity  will  not  attempt  to  exercise 
any  discretion.  A  court  of  equity  will  divide  the  property  up 
equally  among  the  beneficiaries  in  obedience  to  the  majcim  that 
equality  is  equity, 

Salusbury  vs.  Denton(3  Kay  &  Jolinson  529) 

In  that  case  a  beouest  is  made  of  a  fund  to  be  at 
the  disposal  of  the  testator's  widow  by  her  will  to  apply  a 
part  to  the  founding  of  a  childreh's  school  or  such  other 
charitable  institution  for  the  benefit  of  the  poor  as  she  may 
prefer  and  the  remainder  to  be  disposed  of  among  testator's 
relatives  as  she  may  desire.  The  v/idow  failed  to  exercise  the 
power  and  it  was  held  by  the  court  that  the  povirer  was  a  valuable 
one  and  that  one  moiety  of  the  fund  should  go  to  charity, 
and  the  other  moiety  should  be  distributed  among  the  testator's 
relatives  according  to  the  statute  of  distribution. 

Russel  vs  Russel  (36  N.Y.  561) 

In  that  case  a  testator  directed  his  executrix  to 
sell  real  estate"  A£  she  shall  deem  expedient  and  for  the 
best  interests"   This  was  held  to  be  a  power  in  trust. 

We  will  now  consider  what  is  called  a  power  coupled 
v.'ith  a  trust.  In  the  case  of  a  power  in  trust  the  legal  title 
to  the  property  is  outstanding  in  a  third  person,  in  case  of  a 
pow  r  coupled  with  a  trust  the  title  to  the  property  is  in  the 
person  who  is  to  execute  the  power.  He  holds  that  title  not  as 


:■> 


XXIX,  l^QUITT  JTJRISPKUDEITCE.    JR.  92. 

donee  birt    rather  as  trustee.   He   acts    in  a,  double    capacity,    first 
e.s   trustee   and  secondly   as   donee    of   the  power.      So  far  as   the 
pov/er   is    concerned   it    is   exc.ctly   like    a  pure   power, 

MCTj^TIOW. 

V/e  sometimes  meet  with  v;hat  is  called  a  pov.^er  coupled 
v;ith  a  trust.  In  a  case  of  this  kind  the  donee  of  the  power 
has  the  legal  title  to  the  property,  he  holds  the  legal  title 
as  a  trustee.  He  executes  the  power  not  by  virtue  of  the  fact 
that  he  has  been  made  a  trustee  but  rather  that  he  has  been  made 
a  donee  of  the  pov;er.       , 

I  will  suggest  that  in  some  of  the  states  express 
trusts  have  been  prohibited  except  as  provided  by  statute.  In 
some  of  these  states  we  find  provisions  in  the  statute  to  the 
effect  that  where  an  express  trust  has  been  prohibited  provides 
for  the  performance  of  some  act  which  can  lawfully  be  performed 
under  a  power  shall  be  valid  as  a  pbv/er  in  trust.   In  order 
that  there  be  a  valid  trust  the  legdl  estate  must  vest  in  the 
trustee.  But  v/hen  an  attempt  is  made  to  create  an  express  trust 
the  trustee  has  no  authority  to  take  the  legal  title  therefore 
the  legal  title  does  not  vest  in  him.  But  in  the  case  of  a  power 

trusthe  legal  title  does  not   vest  in  the  donee  and  it  is  not 
necessary  that  the  donee  have  the  legal  title  to  the  pro- 
perty in  order  to  cprry  out  the       power.   Referring  to 
the  I'ichigan  statute  for  illustration;  it  is  impossible  for 
us  to  have  a  trust  that  is  not  authorized  by  stat'uie.  Pearly 
in  the  history  of  the  state  a  statute  was  passed  thkt  abolished 
all  trusts  and  confidences  in  land  excepting  as  proviS^  in 
the  statute.  The  statute  after  v/iping  the  slate  clean  turned 
aroixnd  and  built  up  a  statutory  system  of  trusts.  If  you 
attempt  to  create  a  trust  in  this  state  that  is  not  provided 
for  by  statute  the  legal  title  will  not  go  to  the  trustee 
,  because  the  statute  says  under  such  circumstances  the 
title  will  not  ^o  to  him,  it  will  go  to  the  benefici;;ry  but 
he  vi'ill  take  it  under  such  circumstances  subject  to  the  power 
in  trust.     Section  £842  of  the  Compiled  Laws  of  the  State 
of  Michigan  1899  provides:,  "^j^/'hen  an  express  trust  shall  be 
created  for  any  purpose  not  enumerated  in  the  preceeding 
sections  of  this  chapter,  no  estate  shall  vest  in  the  trustee; 
but  the  trust  if  directing  or  authorizing  the  performance 
of  any  act  which  can  be  lawfully  performed  under  a  power  shall 
be  valid  as  a  power  in  trust,  subject  to  the  provisions  in 
relation  to  such  powers  contained  in  the  next  succeeding 
chapter.  "  You  can  see  the  importance  of  knowing  something 
about  the  subject  of  powers,  particularly  in  those  states 
where  there  has  been  trust  legislation.  Powers  in  trust  are 
met  with  in  those  states  where  there  is  no  trust  legislation 
but  more  frequent   in  those  state  where  there  has  been  such 
legislation.   The  question  may  to cur  to  you  why  such  a  pro- 
vision should  be  inserted  in  the  statute,  '^Ihy   was  it  made 


^y.-:v. 


V- 


XKIZ,  EQUITY  JTTHTSPRTOENCT.JR.  93. 

possible    in  e-^ery   case   '/here    a  trust    fails   to   accomplish 
the    seme   res\ilt    throu^-^h  a  power    in  trust "^  ^''hat   has  been   gained 
by  this   le;^islatirn''      I   have   never   seen   any   explanation  by 
any  text   v;Titers   nor  by  any  of  the   cases   that    I  have    examined, 
but    I  presume   the    explanation  would  be   this,    however,    that 
the   opportunity   for  fraud  v;ould  not  be    so  great  under  a  pov/er 
in  trust.   The    ov;ner     of  the    le^al  title  may  almost   alv/ays 
under  certain   conditions   defraud   the   beneficiary.      The   trustee 
may     transfer  the  property  to   an   innocent   purchaser  anii  thus 
defraud  the  beneficiary.   But   in  the    case    of  a  power   in 
trust,    the   donee   r.'ho   corresponds   to  the   trustee,    is   hedged 
about        by  the   conditions  attached  to   the  power  and   can  ex- 
ercise  that  power   only  arr   it    is  pointed   out    in  the    instrument 
ere:  tine  the   power. 

The  next    succeeding   chapter   of   the    statute   has   to   do 
entirely  with  pov;ers.   It  abolishes   all  powers  and  then  pro- 
ceeds  to  build  up   a   system  of   statutory  powers.   The    chapter 
begins   in  the   follov/inL   language i    "Powers,  except   as   authorizred 
and  profided   for   in  tliis   chapter  are   abolished"     We   find 
very  fev:  changes    in  the   essential  particulars   of  the   powers 
from  those   previously  existing.      The   statute  practically 
abolishes   the    old  equitable   pov/ers   and  re-enacts   them  in  the 
form  of   statute.    . 

DICTATION. 

In  several  of  the  states  we  will  find  trust  legislat- 
ion that  provides  that  v/herever  a  trust  is  attempted  that 
is  not  authorised  by  statute  it  may  be  carried  out  as  a  power. 
The  legal  title  in  s^ich  cases  would  not  go  to  the  trustee  ( do  •;ee 
of  the  power)  but  would  be  outstanding  in  another  and  v/ould 
be  held  subject  to  the  execution  of  the  power. 

Michigan  Compiled  Laws  1899, pars.  8842  and  8843.. 

Pomeroy's  Equity  Jurisprudence,  Vol.  2,  pars.  834, 

835  and  1002. 

Bispham's  Principles  of  Equity,  par. 77. 

Perry  on  Trusts  Vol.  1,  p^r.,  24o-258. 

Brown  vs.  Higgs,  Beasy  Chancery  561. 
I  cone  now  to  this  trust  legislc^tion  v;e  find  in  several 
of  the  states.  I  shall  describe  the  general  purposes  of  this 
legislation  and  then  describe  v/ith  some  particularly  the 
legislation  in  the  state  of  "ichigan.   I  should  say  that  the 
general  features  of  this  legislation  is  the  same  every^vhere. 
It  began  in  the  state  of  New  York  somewhere  back  in  the 
forties  and  was  copied  first  by  the  state  of  Michigan  and 
then  by  Wisconsin,  Minnesota,  California  and  the  Dakotas 
anc  several  of  the  other  western  states. 

"ICTATIOK. 

The  trust  legislation  we  find  in  several  of  the  states 
has  the  following  characteristics,  first,  all  uses  ;  nc  trusts 
in  lands  except  as  authorized  and  modified  by  statute  are 
abolished. 

oOo Dec.  4th  '02. 


XK.  EqUTTY  JTOISPRUUmrCE,   JR.  94. 


LECTURE  XX. 

— 0--- 

I  believe  I  have   said  all  i   desire  to   say  on  the 
subject  of  powers  in  trust.     Remember  that  the  essential 
characteristics  of   a  power  in  trust  is    that   it   is   impera- 
tive  and   that  the   powujr  is   the  subject   of    the  trust   ard.  not 
the  property.      The   distinction  between  a  mero  power  and  the 
power  in  trust   is   that  the  former   is   discretionary  and   the 
latter  is  iinperative.     The  distinction  oetween  a  power  in 
trust   and   a  trust  proper  is   that  the  property  is  vested 
in  the  trustee  in  case  of  a  trust.     In  case  of   a  power  in 
trust   the  donae  takes  no   title  to  the  property.      In  case 
of  a  power  coupled  with  a  trust  the  title  to    the  property 
is  in  the  person  as  trustee  who   as  donee  of  the  power  is 
to  execute  the  power.     He  acts  under  such  circumstances 
in  two   capacities.     Pirrt  as  trustee  of   the  property  ani 
secondly  as  donee  of   the  power.     I   sa5.d  that  the  matter  of 
powers   in  trust  was  of   large  practical   in5)ortance  because 
in  many  of   the  states  where  trusts   are   abolished  by  statutes 
the  trust  may  be  executed  as  a  power  in  trust.     I  had  come 
to  a  consideration  of   this  trust  legislation  in  the 
different  states     and  was  describing  the   charactert sties 
of  that  legislation.      I   paid  the  first  ch  aracteilstic  was 
that   it  abolished  all  uses   and  trusts.     Jin  some  of  the 
states  this   It^gislation  is   so  broad  that^  includes  uses 
and  trusts   in  personalty  as  well    as  in  really,  but  usually 
it  has  only  to   do  with  uses   and   trusts  in  »-ealty.      A  pro- 
vision is   often  found  in  connection  with  this   legislation 
that  is  of   some   }ii5)ortanco  which  reads   as  follows;      "Every 
person  who  by  virtue  of  any  grant,  assignment  or  devise,  now 
is  or  hereafter  shall  be  entitled   to  the  control  and  actual 
possession  of   land  and  to   raceive  the   rents   and  profits 
thereof  shall  be  deemea  to  have  the  legaJ.   estate  of   the 
sac©  quality   and  duration  and    subject   to  the   same  conditions 
as  his  beneficial  interest."     The   effect  of  that  statute  is 
to  change  the  equitable  ,title^  into  a  l«sgal  estate.     This   statute 
does   away  with  passive   trusts   and  re-enacts   the  principle 
of  tjae  Statute  of  Uses.      The  cestui   qud  trust  taices  the 
legal  as  well   as  the  equitable  estate   in  case  a  passive 
trust  is  attempted.      It  is  impossible  ±n  i:ichigan  to  ha^e 
anything  like  a  pasive  trust,  for  the   reason   the  moment 
it  is   created  the  Statute  changes  the  equitable  estate  into 

a  legal  estate. 

DICTATICJI. 
In  most   of  t'lese     states   statutes   exist  that  confer 
upon  the  one  entitled  to  the  possession  of    real  property 
or  to  receive  the   rents  and  profits  under  a:  de-oise  or  deed, 
the   legal  title.      A  Statute  of   that   kind   reenacts   the   control- 
ling principle  of  the  Statute  of  Uses  and  it  does  away  mth 
the  possibility  of  a  passive   trust  in  realty  for    the  reason 
that  the  moment  ths   trust   is   cieated  the   statute  changes 


the  equitable   interest  into  a  legal   one. 

Mich,    compiled  Laws   of   '99,   par.    8831. 


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XX.  EqUITY  JURISPRUDENCE,   JR.  95. 


DICTATION. 
The  second  characteristic  of    this  legislation  is,- 
0«rtain  kind  of  express.         active  trusts  are  allowed,      in  such 
trusts  as  are  allowed,    the  trustee  has  the  whole  estate  and 
the  management  of  the  property.     The  cestvii  qu4   trust  has 
the  right  to   compel  the  trustee  to   execute  the  trust 
according  to  its  terms.     The  effect  of   this  statute  is   to 
charge  the  interest  of    the  cestui  que  trust  from  an  equitable 
title  into    an  equitable  right. 

Mich.    Compiled  Laws   '99,   par.    8844. 
The  express  active  trusts  that  are  visually  prD- 
vided  are  the  following: 

a.  To  spll  land  for  benefit  of  -creditors. 

b.  To   sell,  mortgage  or  leaso  lands  for   the  benefit 
of  legatees  or  to   satisfy  a  charge  thereon. 

c.  To   receive  the  rents  and  profits  of  lands  and  to 
accumulate  them  for  the  benefit  of  married  women  or  miners. 

d.  To   receive  rents  and  profits  of  lands   and  apply 
them  to  the  use  of  any  person  during  life. 

e.  For  the  beneficial  interest  of  any  person  or  per- 
sons when  the  trast   is  fully  expressed  and  clearly  defined 
upon  the  face  of  the  instrument. 

The  prevision  of  the  Michigan  Statute  upon  this 
subject  may  be  taken  as  an  example. 

Mich.    Compiled  Laws   of  '99  par,   8839, 

DICTAIICU. 
This  legislation,   as  a  rule  does  not   apply  to  per- 
sonalties. 

A  fourth  characteristic   of  this   legislation  is  that 
"iThen  a  trust  is  declared  in  the  instrument   creating  the 
legal  estate,   any  sale,   conveyance  or  other  act  in  contra- 
vention of  the  trust  is  absolutely  void.     'JThen  the  trust 
is  not  so  declared  it  is   inoperative  as  against  a  bona  fide 
purchaser  for  value  from  the  trustee  without  notice  of  the 
trust  arii  is   alao  Inoperative   against  the  creditors  of  the 
trustee.     This   is  of  a  great  deal  of  iii5)ortance.     When  a 
trust   is  declared  in  a  separate  instrument  without  the 
trust  being  set  out  then  it   is   an  absolute  conveyance  to 
him  so   far  as  his  creditors   are   concerned, 

DICTATION, 
4th  characteristic:    When  a  trust  is  declared 
in  the  instrunent  creating  the  legal  estate,  ary  sale  or 
other  act  of  the  trustee  in  contravention  of   the  trust  is 
absolutely  void.     If  not  so  declared,   it  is    inoperative  as 
against  a  bona  fide  purchaser  from  the  trustee  and  also 


XX.  EQITTTY  JUKE SPRUDEtTCE,   JH.  96. 

against  the  subaequent  creditor's  of    tiae  trustee  not  having 
actual  notice  of   tlie  trust. 

To  protect  the  benofic iary  under  a  trust,   the  trust 
should  be   declared  in  the   instrument  creating   the  legal 
estate.     When  you  do   not  do   that  you  place  yourself  entirely 
in  the  hands  of   the  trustee. 

Mich.    Compiled  Laws   '99   par.    8848-49. 
Another  and  the  fifth  characteristic   of   this   legis- 
lation:    Where  the  trust  is  for  the  continued  benefit  of 
the  party  he   cannot  assign  or  otherwise  dispose  of  his 
interest,   and  the  interest  cannot  be  reached  by  his 
creditors.     This   is   of  considerable  importance  in  regard 
to  the   colection  of  debts.     As   a  rule  Mfaere  the   rents 
and  profits   of  lands  are   to  be  paid  over  for   the  continued 

support  of  a  person,   it  cannot  be  reached  by  his   creditors. 
In  some  states   that  fund  is  exempt  up  to   a  certain  sum  and 
beyond  that   it.  is.siibject  to    execution  by  his   creditors, 

DICTATION. 
5th  characteristic:     Where  the  trust  if  for  the  con- 
tinued benefit  of  the  party  he   cannot  assign  or  otherwise 
dispose  of  his  interest  and  his  interest  cannot  be  reached 
by  his  creditors  as  a  rule.     But  lAftiere  the   trust  is  fof  the 
payment  of   a  sum  of  money  in  gross,   the   interest  of   the 
beneficiary  is  assignable  and  may"be  reached  by  his  cr edit- 
ors. 

Mich.    Compiled  Laws   (99,  par.    8847. 
In  California  the  beneficiary  can  assign  his  interest 
unless   restrained  by  the  terms  of  the  trust. 

calif.    Code,  par.  667, 
6th  characteristic:      Trusts  arising  or  resulting  by 
inplication  of   law  are  not   abolished  by  this   legislation. 
Mich.    Coinpiled  Laws    '99,   par.    8854. 
Pomeroy  Vol.   2  1003-1005   and   notes. 
I   desire   the  Mich,   students  to   master   tho   Chapter 
on  Uses  and  Trusts. 

Mich.    Comp.   Laws  Chap.    238. 
This  is   all   I   care  to   say   about  private   trusts.     You 
will  remember  the  division  of   the  subject  into   PRIVATE 
THJSTS   and  PUBLIC  or  CHARITABLE   TRUSTS.      I    cane   now  to 
the  second  division  of   the  subject. 

CHARITABLE   TRUSTS. 

This    subject  of   charitable   trusts   is   of   less  impor- 
tance  in  some  states  than  others.      In  sane   states   charitable 
trusts  have  been  abolished.      In  Michigan  we  do   not  have   any 
charitably   trusts.     We  did  have  but  ^en  the  statute   abolished 
uses   and  trusts   charitable  trusts  were  abolished  along  with 
the   rest  and  no  new  syster     was  built  up,  and  the  statutes 
did  not  provide  for  charitable   trusts.      In  mar^  of   the 
states  you  will   find  charitable   trusts   existing  and  a  great 
deal  of  litigation  has  grown  out  of  charitable  trusts.      In 
Michigan  where  we  have  no  technical   charitable   trusts. 


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XX.  EQUITY  JURISPRUDENCE,    JR.  9?, 

charities   are   administered,  tlirou'^li  corporations  brou/jht 
into    existence  ty  statute.      Statutes   are  passed  permit  tin,;;: 
hospitals,    etc.      The  present   situation  and  condition  of    the 
law  on  this   subject  is   explained  hy  Pomeroy  in    lis  work 
on  equity,    in  the   citation  which  I   will  sive  you  latere 
The   charitable  or  public   trust  is  of  great  practical 
iir5)ortajice   in  most  of   the   states.      In  a  few  of   the     states 
they  have  been  abolished  by  statute,   ard   the    charitable 
trusts   in  such  states  must  possess    all  the    essential 
characteristics   of  the  private   trust.        In  a  few  of   t.:-o 
atates   tb©   charitable   trust  has   never  been  recognized  a^ 
ever   existing, 

Pomeroy,   p  ar.    1029    and  notes, 
I   dosjre  you  first   to  get   a   clear  notion  of  what   a 
Charitable  Trust   is'.      I  will    endeavor  to   give  you  this  both 
by  definitions   and  descriptionso 


-oOo^ 

Dec,    5th,    '02. 


XXI.  EQUITY  JURISPRUDENCE.    JR.  98.         . 

LF<)TURE   XXI, 

In  ray  last  lecture  I  had  just  reached  the  subject  of 
T^ublic  or  Charitable  Trusts.   I  said  at  the  close  of  the 
hour  that  I  would  endeavor  to  give  you  a  clear  notion  of 
v;hat  a  'Charitable  Trust  is  hath  by  description  and  definit- 
ions. I  v/ill  first  point  out  the  chief  characteristics  of 
a  charitable  trust,   I  have  said  that  in  an  express  private 
trust  there  must  alv/aya  be  a  clearly  identified  beneficiary, 
but  if  the  trust  is  'ftiade  for  public  purposes  it  is  immater- 
ial that  the  beneficiary  is  uncertain  and  indefinite.  In  the 
public  or  charitable  trust  the  beneficiary  is  a  class  or 
portion  of  the  public  described  in  general  terms.  They 
are  indefinite  and  not  individually  designated.  For  example 
e  trust  for  the  benefit  of  the  por  persons  of  £■  certain 
community i  a  trust  frr  the  benefit  of  the  v/idows  and  orphans 
of  ?  certain  parish.  The  beneficiaries  are  uncertain,  un- 
ascertained and  described  in  a  general  way.  Although  the 
beneficiaries  may  be  indefinite,  still,  there  must  be  suffi- 
cient certainty  to  indicate  the  intention  cf  the  party 
creating  he  trust.  P    trust  which  would  fail  for  want  of 
certainty  in  the  description  of  its  object  and  the   purp- 
oses of  the  trust,  and  the  description  of  the  beneficiaries, 
if  it  were  an  express  private  trust ,  may  be  upheld  in  a 
court  of  equity  if  its  purposes  are  charitable,   I  should 
remark  in  this  connection  tha,t  che.ritable  trust  are  required 
to  be  more  definite  in  this  country  than  in  "'^ngli.nc  , 

riCTATI-~='  . 

The   technical   Charitable   Trust    is   characterized  as 
follows ;, first , -indefiniteness   as   to   the    individual  benefic- 
iaries.   The  beneficiaries   are   usually   a  class   of  persons 
that    is   constantly   chan.ing,    for   example,    the  poor   of   a 
certain   city.    In  case    of  the    express   private    trust    on  the 
other  hand,    the    designation   fcf   the   beneficiaries  must  be 
definite.    In  charitable   trusts   there   may  be   some    indefinite- 
ness   as   to   the    objects   of  the    trust    and   still  the    trust 
m.ay   stend.    The    indefiniteness   as   to  beneficiaries  ;  nd   as   to 
the    object   may  be   greater   in  ]^ngland, 

Pomeroy's   Equity   Juris.    Vol,    2,    1016-1019-1025. 
Perry   on  Trusts,    687,710. 

There    is   a  peculiar  doctrine    that    grows   out      of  the 
fact   f'lat    the   object    of   a   charitable    trust   ma.y  be    indefinite, 
which   is   known  as   the   Cy  pres   doctrine.      -^he   Cy  ''^res    doctrine 
is    one  under  v/hich  a   court    of   equity  raty   act   when  there   has 
been   ?    devise    tr  gift    in   trust   for  charitable   uses   which 
cannot   be   carried   eut    exactly   in   accordance  with  the    intent- 
ions  of   the   testator.      The   term   "Cy  pres"    comes   from  the 
Erench,    and  means, "as   nearly  as  possible".    The    object    of 
the    trust  may  be   unltv.rful   or  has  been   so  indefinitely  ex- 
pressed that    the    c»urt    cannot    carry  it    out ,    under      circum- 
stances   of   that   kind,    where    a    charitable    intent    is   indicjited 


XXI.  'EQUITY  JTIPI'^r^ir-^'^^-^.  J-o ,  99..  ■ 

in  the  instn;anenx,  .■_  court  of  equity  may  construct  a 
scheme  cy  pros  in  accordance  with  the  scheme  outlined  in 
the  will  and  so   c; rry  out  the  charity.  The  charitable 
trust  tuilt  up  under  this  scheme  must  be  similar  in  nature 
to  the  one  provided  for  in  the  will  .  The  judicial  cy 
pres  doctrine  will  not  build  up  a  charitable  trust  entirely 
different  from  the  one  suggested  in  the  v/ill.  It  is  a 
c'oc trine  by  which  r  court  of  equity  may  malce  definite  what 
a  testator  has  failed  to  make  definite  in  his  will.  The 
case  of  Jackson  v.  Phi  .lips,  is  the 'leading  case  upon  the 
subject  in  this  country. 

This  cy  pres  doctrine  is  of  importcnce  in  most  of  the 
states.  It  is  not  of  importance  in  those  states  where  the 
doctrine  of  cht^ritable  trust  have  been  abro[.^-ated  by  statute 
c-s  in  the  State  of  Michigan  for  example.   Cur  trust  legis- 
lation began  by  first  wiping  out  all  trusts  in  existence  at 
the  time  of  the  passs^ge  of  the  statute.  This  legislation 
wiped  out  charitable  trust  along  with  the  others.   It  then 
went  to  work  tnc  built  up  a  statutory  scheme  of  private 
trusts,  but  does  not  provide  for  charitable  trusts.  It 
provides  fnr  charities  but  not  byway  cf  charitable  trusts. 

nCTATION. 

The  Cy  Pres  c  octrine  is  peculi£-r  t®  chsritc'ble  trusts. 
It  is  cf  two  kinds,  the  judicial  and  the  prerogative.  The 
word  means,  "as  nearly  as  possible".  The  c octrine  is  that, 
where  the  testator  h-:  s  indicted  a  charitable  intent  but 
thct  intent  cannot  be  carried  out  in  accordance  v/ith  his 
directions,  whether  on  account  of  incef initeness  of  the 
provisions  or  because  of  chan^^ed  conaitions,  the  court  may 
construct  a  scheme,  cy  pres  alon^,  the  general  lines  inc.icated 
by  the  v/ill  for  the  purpose  of  carrying  out  the  ch?  ritable 
intent  of  uhe  testator. 

Jackson  v,  Phillips  ( I llus  cases  pf-ge   402) 
(15  Allen,  539) 

^om.ercy's  E  :uity  Juris.  Vol.  2,  1027 

"'-^unt ,  -'tty  Gen.,  v.  ?owler(Illus  cases  p;ge  430) 
(12  N.-^.  331) 

r-isphrmJs  "^rin.  of  ?]q.  130. 

I  should  Gug  est  that  this  doctrine  a  pears  in  England 
TJinder  two  c'i'^tinct  forms.  The  one  form  is  the  judicial 
doctrine  I  ha^e  just  described,  and  the  other  is  usually 
called  the  prerc.-ative  cy  pres  doctrine.   The  Chancellor 
exercised  the  judicial  o octrine  by  his  c  cinary  functions. 
Eut  he  exercised  the  prerogative  doctrine  by  virtue  of  royal 
authority  and  direction.  This  extr^crdinnry  power  exercised 
by  the  "^nglish  courts  9f  equity  is  nst  exercised  by  any 
courts  in  this  country.-. 

EICTATION. 

Another  branch  of  the  doctrine  is  known  as  the  pre- 
rogative cy  pres  titctrine  according  to  which  the  court  by 
virtue  of  royal  prerogative  constructs  'a  scheme  ff^r  charit- 
able -urposes  without  regard  ts  the  particular  intention 
of  the  testator. 


;TI.  ?:QUI.Y  JL^.".ISPRUr.?."CT^.    .T?. ,  100 

Perry    on  Trusts,    '?!&. 

Let   me   pass   on   to   j. nether   characteristic   of  cli,  rit- 
atle   trusts,    A-other  characteristic    is   that   chtrit^tle 
trusts   are   not    subject    to    the    ordic.nary   rule    tfvainst 
perpetuities.      The   lav;  a^vainst   perpetuities   v/ill  not   per- 
mit   the   tying  up   of  property   in   such  a  'ray   that    it    cpn'^ot 
he   t'liencted  "teyond   p    certp  in  period  fixed  "by   lar;.      The 
period   is   usually   fixed  "by   statute    in  most    states^      It 
is  usu^  lly  for    one    "ife    or   lives    in  "ceing   and  twenty   one 
yetrs.      /    perpetuity  Cfnnot   "be    ;  ccomplished  throu/^h   the 
instrumentality   of    m   ordinary   t**ust,    "but   a  trust  may  "be 
created  '.vhich   is  perpetual   for   charita'ble   purposes.    A 
trust   may  he   created   •••hich  contemplates   the  payment    of   a 
certain   sum.  to    charity   for   ever.      The    very   idea   of   a  chari- 
table  trust    includes   the   notion  that    it   may  be  perpetual. 
Although  a   chc  "'itt- ble    trust   m.ay  be   perpetual   it   dees   not 
necessarily  follovif  that    the    subject    of  the    trust    is   never 
to  be    alienrtod.      "henever   it   becom.es   necessary,    in   the 
opinion   of   the    court,    to   change   the   form  of   the    investment, 
the    trustee    of   the    ch;  rite  ble    trust      may  c'ispose    of  the 
property,    but    does    so  by  virtue   of   the    specicl   order    of   the 
court.    ?or   exrm.ple   a  hospit--  1  has  been  built    for   chcritable 
purposes   and   it   becomes   desirable   to   change   the    location 
of   the   hospitcl,    the   trustee   m  y   apply   for   leave    to    dispose 
of    the   property,    fnd  to    reinvest    the   proceeds.   But    in  the 
case    of        charitable    trust    it    is   understood   that   the   pro- 
--lerty   is   not    to   be    sold  for   ordinary  purposes. 

LICT.  TIOK, 

The    charit;ble   trusts,    unlike    the   privete   trusts,    are 
not    subject    to   the    rule   against   perpetuities,    yet,    the   pro- 
perty be  lent  ing   to   such  c    trust   under  the    s.ecit 1  order 
of   the   court,   may  be    sold   and   the  proceeds    reinvested,    when- 
ever  the    court    determines   th;  t    such  a    sale    is   advisable.    The 
proceeo.s    of   the    sale   under   such  circumstc  nces  v/ould  be   used 
for   ch.  rit£.ble   purposes. 

Perry   on  Trusts,    736-737. 

BisphimJs  :^rin.    of   "quity,    133. 

Pom.eroy  ?q.,  101&. 

/nother  pa  ticular  where  charitable  trusts  are  favored 
by  lav/,  is  thrt  they  t  re  not  subject  as  a  rule  to  the 
St&tute  a.^.ainst  eccumulr  tions .  For  any  givea  purpose  accumul- 
ations are  not  r.ermitted  beyond  a  certcin  period,  which  by 
the  common  law  was  i    life  or  lives  in  being  and  tv/enty  one 
years.  It  is  now  regul,  ted  by  statute.   This  rule  which  is 
saic  to  be  founded  on  publdc  policy  would  not  permit  a  tes- 
tator to  give  in   este 'e  to  be  ac  cumuli  ted  for  c  time  lont^er 
thai  the  staute   llowed.   Trusts  for  accumulations  must  be 
strictly  confined  v.-ithin  the. statute.   But  in  the  case  of  a 
charitable  trust,  a  trust  for  accumlation  beyond  the  common 
1,'V/  period  and  the  statutory  period  would  be  valid.   I  should, 
however,  ca  1  your  attention  to  the  fact  that  there  has  been 


E:I.  equity  JUKI S.^E.  TV-: C7,.    Jr;.  101 

lef_islation   in  t'lij    country  uic    in  '  n.^lant     s   orteninj   the 
period,    e  tc.  v/.'-ierever   thei'e  hr  s  teen    such  provisions 
charitr'ble    trusts   will  he    sutjekt    to   them  unless   specidly 
excepted  ty   the   pro\^isions   of   tie    le^.:.i  slat  ion. 

]IC?ATIO?T, 

In   the    chsence    of    st^  .utes   to   the   contrary  the   '^h?rit- 
c-"ble    trusts   are   not    subject    to   the    rule   as   to  accuinul^  tions , 
This    is   r  matter  upon  which  '-cur   ctatute    should  al.'ays   he 
consulted,    as    in   some    of   the    states    there   hc'S  been   chantjes 
in   this   re.^'ard. 

^err:;-    on   Trusts,    393-399. 

Ode  11  V.    Ode  11,    10    "lien,    p,- ,,e    1. 

I   think   I    have   Given  you   i    description   of   the   principal 
ch   racteri^tics    of   charitable    trusts.      In  all   other   respects 
ch^-ritatle    t^^usts   are    ;o"erned  b^'the    Sc-jne    laws   th- t    re.julate 
pri-"?te   trusts.      You  c;  nnot   fully   comprehend  whet    a      charit- 
able   trust    is  unless   you  know  v.hat   uses   ana  purposes  have 
been  held   to   be    charitable.      I   vail   explain  to   •■  ou  what 
uses   h;  ve   been   anc"    are   now  held   to   be    charitable.   You  have 
alreacy   gather  from  7;hc-,t   I   hx  ve    said  that   the   purpose    in 
order   -co   be    charitable   according   to   the  merjiin._,    of   the   term 
fcs    it    is   here   used,   must   be   for  the    benefit   of    sane    indefinite 
person.    I   have    not}iin.^.   to   do  v.'ith  private   charities    in  this 
connection.    In   explcinin^^^   to   you  the   uses   ,  nd  purposes   that 
have   been  held   to  be   charitable,    I  must   refer,    first,    to   a 
str.-ute   parsed   during  the    reign   of  ;^lizab"th,  1601,    known  as 
the    ^tatute    of   Ch£.ritable   Uses.        Those   uses   that   were 
deemed  to  be   charitable    in   1601   and  were   declared   in  this 
statute   were   uses   that    c  re    re._:arded   as   charitable   to-day. 
In   other  words    the   classification   of   charitable   purposes 
in   the   Statute    of      Charitable   Uses  passed   during   the    reign 
of  Flizabeth  is   the    classif ic;  tion   of   to-day.      Do  not    con- 
fuse  this    statute   with  the    Statute    of  Uses,    they   ire   two 
different    statutes.    The    Statute    of   Uses  v/as  passed   during 
the    reign,  of  ''■Tenry  VIII.,    the    '"■tatute    of   Chr-.i  itable   Uses 
was   passed   during  the    reign    of  Elizabeth.    Kenry  VIII    in 
his   contest    against   Papal    suprejaacy  practically   abolished 
charitable    trusts,    many  v/ere   neflected   ana  the    funds    of 
many  j-".isa"'~ropriated.    This   continued  until  the    reign   of 
T^llizabeth.    Severtl    statutes  were   passed  for   the   purpose    of 
encoura,;ing   and    restoring   such  trusts,    and  the    le.islaticn 
finally  cul±Kiminated  Kin   the   passa.:;e    of  the   Statute    of 
f'hari table   Uses,    to   which  I   have    referred.    This   statute 
furnished  tw    a   certrin   extent    a  description   of   the  uses   rnd 
rurposes   to  be    ccnsicered   charitable, 

DICT/TION. 

"he  uses  and  purposes  that  are  deem.ed  by  the  courts 
to  be  charitable   are  stated  in  the  Statute  of  Charitable 


ZXI.  ;'OUITY  JT^  ISPRU  ""-C]^.  JT.,  102 

Uses,  I'assed  duririe:  ':>-e  I'si.  n  of  ^ucen  .Mizateth.  'Jhe 
classification  there  ,„,iven  is  ':''-e  one  foilov/od  to-^-c.y. 
Perry  on  Trusts,  391-39.:  e  j  ^:  note, 
'^'ee  also  Impo:  t.nt  'nglish  Fitc  ■utes. 
The  uses  thrt  vera  deemed  charitt.ble  c  t  t}ie   c.ssa.e 
of  this  St.  ute  he  "e  teen  -.ivic'ed  into  chree  cl:sses. 

LI CT AT 10  . 
Tne.   riur-T^oses  c'ocrihed  in  the  StcvUte  of  Charitable 
Uses  and  v/ere  deemed  by  the  courts  to  he  charitable  are 
divided  into  the  f  cllo'.'in.-^  ,- 

(1)  7or  the  relief  anc  assist;  nee  of  Jae  poor  cMd 
needy.  But  the  enumere-tion  of  t/ie  statute  in  this  particular 
has  been   reatly  enlar;,ed  by  the  holdin  s  of  ..h:^  courts  so 
that  its  spirit  rs^ther  than  its  le  .ter  is  nov.-  the  rale, 

(2)  Por  the.  r>romotion  of  education.  T]ie  specifications 
enumerated  in  the  Statute  is  the  maintenance  of  schools  of 
learninc,  free  schools  c.nd  -cholars  in  universities. 


cOo Jec.  1..  '0 


XXII.  EQUITY  JTjTJ: SPRUDEliCE  JR.  103. 

IJ^CTXIRE  30CII. 
— 0-- 

/t  the  close  of  the  last  lecture  I  v;as  trying  to 
explain  to  you  the  uses  and  purposes  that  were  considered. 
charitatlo  and  had  sugi^ested  to  you  that  tho  uses  and  pur- 
poses deemed  by  tho  courts  to  "be  charitable  are  stated  in 
tho  Rtatuto  of  Charitable  Uses  passed  during  the  reign  of 
Oueon  ?lizaboth.  Th--'  statute  is  rarro\;  in  its  terms,  it 
specifies  too  much  i^^.  detail  to  be  upon  its  face  of  general 
ap""liCc.tion,  but  the  courts  have  enlarged  its  operation  by 
the  construction  put  upon  it .  ,  I  was  considering,  I  believij, 
the  second  of  the  uses  that  was  specified  in  the  statute 
as  charitable,  which  is  as  follov/s:  "?or  the  promotion  of 
education;  the  specification  enumerated  in  the  statute  is 
the  maintenance  of  sch.ools  of  learning,  free  schools  a,nd 
scholars  in  Universities.   The  specification  would  have 
been  much  more  comprehensive  if  it  had  been  simply  for 
educational  purposes.  It  would  have  been  no  more  compre- 
hensive than  it  is  now  under  the  construction  of  the  courts, 
for  all  uses  thi-.t   are  for  educational  purposes  are  deemed 
to  be  charitable, 

DICTATION. 

The  language  of  the  statute  under  this  head  is  no 
comprehensive,  but  by  the  construction  of  the  courts  it  has 
been  enlar,  ed  so  that  now  all  uses  for  educational  purposes 
usin^  the  terra  in  a  comprehensive  sense  are  deemed  to  be 
charitable. 

The  third  specification  in  the  statute  is  for  the  re- 
pair and  maintenance  of  public  buildin:_,s  and  v/orks.  The 
enumeration  in  the  statute  includes  bridges,  causeways,  sea 
banks,  highways  _  churches  and  houses  of  correction  a-nd  the 
specification  seems  to  confine  the  scope  of  the  sta^-ute  to 
the  objects  mentioned,  Sut  by  construction  of  the  courts 
gifts  for  bringing  water  into  a  tovm   have  been  hold  to  be 
charitable  and  many  other  gifts  of  the  same  character  have 
been  held  to  be  charitable.  Any  provision  that  provides 
for  the  lightening  of  the  burden  of  the  public,  any  provision 
mace  generally  for  the  public  good  are  deemed  to  be  charit- 
able . 

T'lCTATIOJ:, 

(3)    ?or   the    repair  and  maintenance    of  public   buildings 
and  works.   The    specifications    of  the   statute  i-inaer  this 
head   is   narrow,    out    the   cons-ruction   of  the   courts  has 
made    it    sufficiently  broad  to   include   all  gifts  for   the 
benefit   of  the   public. 

The  fourth  specification  is   for  religous  purposes. All 
religous   purposes   are   clearly  charitable.   They  are   clearly 
v/it>xin  the    spirit    of  the   statute   thou:^h  not   v/ithin   its   letter. 


XXI I .  RQUI T  Y  JURISPRUDENCE . JR .  104. 

The  provision  in  the  statute  is  simply  for  the  repair  of 
churches.  The  wording  of  the  statute  has  been  sufficiently 
enlarged  by  the  construction  of  the  courts  to  include  all 
religious  uses, 

DICTATION. 

(4)    Gifts   for   religious   purposes    ,   Me   term  being 
uses    in  a   comprehensive    sense   are   clearly     charitable   al- 
tho   the   provision   in  the    statute    is    simply  for   the    repair 
of   churches. 

Pomeroy's  Eq.    Vol.    2,    par,    lo20-1021-1024, 
Bispham's  Prin.   Eq.    119-123. 
Perry   on  Trusts,    692-698-706. 
All  the   charitable   purposes  mentioned  in  the   Sta  ute 
of  Uses    are    included  under  the   four  heads   I   have  mentioned: 

(1)  lor  the    relief  and  assistance    of   the  poor 
and  needy, 

(2)  Por   educational  purposes, 

(3)  For  public   purposes. 

(4)  Por  religous   purposes, 

Y/liat    .  :-haritable   trusts   are,    I  believe,    I   have 

made    sufficiently  plain  by   description   of  their  character- 
istic   features   and  the   uses    c?jid  purposes   that    are   deemed 
to  be   charitable. 

DICTATION, 

Por  a  comprehensive  description  of  charitable  uses 

Jackson  v.  Phillips ( I llus  Cases,  page,  402) 


ses 


According  to  some  authorities  the  court  of  equity 
gets  jurisdiction  over  matters  of  charity  by  force  of  the 
Statute  of  Charitable  Uses,  but  the  more  correct  conclusion 
is  that  the  jurisdiction  is  possessed  by  virtue  of  the 
court's  inherent  p«T/er,that  the  statute  simply  regulates 
the  jurisdiction  and  defined  more  distinctly  the  classes 
of  objects  tliat  are  charitable. 

Williams  vs.  miliams  8  N.Y.  525. 

G-juld  V.  Washington  Hospital,  5  Otto  U.S.,  303, 

Perry  on  Trusts,  693-694, 

Pomeroy's  Eq.  1028. 

In  several  states  charitable  trusts  are  not  found 
because  they  have  been  abrogated  by  legislative  enactments. 
This  change  began  in  the  state  of  New  York,  The  legislature 
first  abolished  all  trusts  and  confidences  in  land  and  then 
the  statute  proceeded  to  build  up  a  statutory  system  of 
trusts.  The  abrogation  ©f  all  trusts  abolished  charitable 
trusts  and  in  building  up  a  statutory  system  of  trusts 
charitable  trusts  were  not  included.  The  legislation  in  New 
York  was  followed  in  Michigan  and  several  other  of  the 
western  states.   This  is  a  subject  upon  which  you  should 
consult  your  local  statutes.  But  in  the  state  of  Hew  York 
and  the  state  of  Michigan  where  trusts  technically  consider- 
ed, have  been  abolished  and  no  provision  made  for  techinical 


XXII.  EQUITY  JURISPRUDENCE.  JR.  105. 

charitable  trusts,  j'ou  vvill  find  provisions  for  charitable 
uses  through  the  medium  of  corporations  that  are  est^ihlished 
"by  the  legislature  for  charitable  purposes.   The  Nev;  York 
legislation  upon  this  subject  is  somewhat  peculiar.   You 
all  remember  the  Tillman  will  case;  by  the  provisions  of 
the  will   large  sums  were  apparently  set  asidf^?  for  the 
establishment  of  a  public  library  in  New  Yor^  but  there 
was  so  much  uncertainty  as  to  how  his  intention  was  to  be 
carried  out  and  so  much  uncert-inty  as  to  the  trustees, 
that  the  court  of  New  Y»rk  decided  that  it  was  impossible 
to  administer  the  charity  under  the  provisions  of  the 
statute  then  in  force  in  New  York,  Had  there  been  no  statute 
upon  the  subject  of  charitable  trusts  in  the  state  of  New 
York,  if  the  court  had  been  free  to  apply  the  cy  pres 
doctrine  there  would  have  been  no  difficulty  in  saving  the 
proceeds  for  charitable  purposes  that  Tillman  had  in  mind, 
under  the  circumstances  it  could  not  do  so,  and  the  will 
failed.   Undoubtedly  this  Tillman  will  case  which  came  be- 
fore the  court  about  that  time  suggested  to  the  legislature 
•f  New  York  that  there  ought  to  be  some  change,  so  in  1893 
a  bried  statute  was  passed  by  the  Assembly  of  New  York  that 
put  back  into  force  in  that  state  the  cy  pres  doctrine  to 
its  fullest  extent.   I  think  undoubtedly  that  similar  legis- 
lation will  follow  in  other  states.  In  mind  mind  the  cy 
pres  doctrine  is  a  safe  doctrine  and  a  necessary  one. 

DICTATION. 

In  several  of  the  states   charities  are  made  effective 
through  the  medium  •f  corporations  provided  for  by  the 
legislature.  This  is  the  case,  in  the  state  of  New  York  f«r 
example,  in  that  state  by  recent  statute  the  cy  pres  doctrine 
has  been  revived. 

Allen  V.  Stevens,  161  N.Y.  122(Illus  Cases  423) 

B.TLIED  TRUSTS. 

I  will  pass  on  to  the  second  great  division  of  trusts, 
namely,  trusts  arising  by  implication  of  law.  Trusts  of 
this  kind  are  generally  called  implied  trusts.  The  law  im- 
plies these  trusts  from  the  conduct  of  the  parties. 

DICTATION. 

Implied  trusts  are  distinguished  from  express  trusts 
because  they  are  raised  by  the  law  and  not  by  the  agreement 
of  the  parties.   The  law  raises  trusts  of  this  kind  either 
for  the  purpose  of  carrying  out  the  presumed  intention  of 
the  parties  or  for  the  purpose  of  securing  fair  dealing  be- 
tween the  parties. 

Another  characteristic  is  found  in  the  fact  that  in 
the  case  of  implied  trusts  there  is  a  notion  of  antagonism 
betv/een  the  trustee  and  the  beneficiary.  The  object  of  the 


I-      ';;•:■,•<• 


■■  i'i  J 


XOI.  EQUITY  JURISPRUDEKGE  JTl.  106. 

beneficia.ry  is  to  put  an  end  to  the  trust  relation  at  the 
earliest  possible  moment.   In  the  case  of  express  trusts 
there  is  a  cert,  in  degree  of  permanency  to  toe  relation. 

There  is  another  characteristic  by  which  implied 
trusts  may  be  distinguished  from  express  trusts,  they  are 
not  subject  to  the  statute  of  Frauds.   One  section  of  the 
statute  provides  that  all  trusts  in  relation  to  land  must 
be  manifested  and  proved  by  some  writing.   Eut  the  statute 
does  not  apply  to  trusts  in  personalty  and  such  trusts  may 
be  manifested  -end   proved  by  parol.  The  courts  will  insist 
upon  clear  and  almost  demonstrative  proof,  it  will  look 
carefully  to  the     quality  of  the  evidence  but  it  will 
not  insist  that  trusts  in  personalty  be  proved  by  some  7/rit- 
ing. 

DICTATION. 

Another  characteristic  is  that  they  are  ncrt 
within  the  provision  of  the  Statute  of  Frauds. 

As  to  these  characteristic  differences  that  I 
have  been  speaking  of,  see: — 

Pomeroy,  Vol.  2,  1030. 

DICTATION. 

All   implied  trusts   are   divided   into  two   classes: — 

(1)  Resulting  Trusts. 

(2)  Constructive  trusts. 

A  resulting  trust  is  one  that  results  by  operation 
of  the  presumption  of  law  from  certain  acts  or  relations 
of  the  parties  that  indicate  an  intention  to  create  a  trust. 
You  cannot  put  your  finger  upon  an  particular  word  by  which 
the  parties  decalred  that  they  intented  to  create  a  trust 
but  when  you  take  into  consideration  all  the  acts  of  the 
parties  in  connection  with  the  transaction  it  is  perfectly 
apparent  that  they  intended  that  a  trust  relation  should 
exist  and  under  such  circumstances  the  court  will  raise  the 
relation,  A  party  may  execute  a  conveyance  absolute  upon  its 
face,  wherein  no  provision  is  made  for  a  trust,  which  passes 
the  legal  title  directly,  but  yet  the  circumstances  surround- 
ing the  execution  of  the  conveyance  may  be  such  as  to  in- 
dicate to  a  fair  m.inded  man  that  the  party  making  the  con- 
veyance intended  to  retain  some  beneficial  interest  in  the 
property  and  under  such  circumstances  the  court  will  raise 
a  trust  between  the  parties. 

DICTATION. 

The  resulting  trust  is  one  that  the   law  raises 
from  the  acts  or  relation  of  the  parties.  The  acts  or 
relations  of  the  parties  are  such  that  one  may  properly 
conclude  that  a  trust  was  intended  by  them.  The  resulting 


XXII.  EQUITY  JUPJSPRUIjENCE.    JR.  107. 

trust    is   a   trust   that   the    law  presumes   on  account    of   surr- 
ounding circi;-^stances.   Resulting  trust  raay  "be   divided 
into   the  following    classes :-- 

(1)    This   class   embraces   cases   where    one  party  has 
furnished  the    consideration   and  the    legal   title   to   the 
property  has  heen   taken  in   the   name   of   another  under   such 
circumstances    in  the   absence    of   sta:ute   to   the   contrary 
a  trust   results    in  favor   of  the  party  furnishing  ite  con- 
sideration. 


^oOoo) Dec,    18th   "02. 


XXIII.         J  EQUir/   JURISPRUDENCE,    JR.  108. 

LECTURE  XXIII. 

—00-- 

In  order  that  a  trust  may  arise  the  advancement 
must  be  made  as  a  consideration,  not  as  a  gift  or  as  a  loan. 
If  the  advance  ment  is  made  by  several  a  trust  will  arise 
in  favor  of  all  of  the  parties  making  the  advancement 
each  in  proportion  to  the  amount  advanced.   If  a  party 
advances  to  another  the  consideration  for  the  purchase  of 
'real  property  and  he  makes  the  purchase  and  takes  the  title 
■thereto  in  his  own  name,  but  contrary  to  the  directions 
of  the  one  furnishing  the  consideration  a  trust  will 
arise,  but  the  trust  in  this  case  is  a  donstructive  trust 
instead  of  a  resulting  trust  inasmuch  as  it  is  based  upon 
f r  aud . 

If  the  party  furnishing  the  consideration  has  the 
conveyance  of  the  legal  title  taken  in  the  name  of  wife 
or  child  or  other  person  for  who-t;  he  is  under  some  obi- 
ligation  to  provide,  the  presumption  is  that  the  purchase 
'was  intended  as  an  advancement  to  the  grantee  in  the  deed. 
If  the  party  paying  the  consideration  claims  a  resulting 
crust  he  must  rebut  this  presumption  by  proper  evidence. 
Perry  on  Trusts,  par.  143-169. 
Pomeroy's  Sq.  Juris.  Vol.  2,  par,  1039-1041. 
Bispham's  Prin.  Eq.  84. 
Hagan  v.  Powers  (Illus.  Cases,  451) 
(72  N.  v7.  ,  771;  103  Iowa  593i 
The  resulting  trust  that  surises  in  favor  of  the 
party  furnishing  the  consideration  has  been  abolished 
by  legislation  in  several  of  the  states.   Tiiat  is  the  case 
in  New  York,  Kentucky,  Wis.,  Kan.  and  Mich,  arjd  several  of 
the  other  states.  But  this  legislation  provides  for  a 
trust  in  favor  of  the  creditors  of  the  party  furnishing 
the  consideration.  But  it  is  only  judgment  creditors 
that  can  take  advantage  of  this  situation,  and  they  can 
only  do  so  after  having  returned  the  legal  execution  un- 
satisfied. They  take  advantage  of  the  situation  through 
the  instrume^itality  of  the  creditor's  bill. 
Fisher  v.  Poles  (22  Mich.,  454) 
Ocean  Nat'l.  Bank  v.  Olcott  (46  N.  Y.  12) 
The  second  class  into  which  resulting  trusts  are 
divided  embraces  cases  in  which  property  has  been  left 
by  will  or  conveyed  by  deed  for  some  particular  purpose  or 
trust  and  these  purposes  fail  in  whole  or  in  part,  ot  which 
are  of  such  Indefinite  nature  tliat  courts  of  equity  will 
not  carry  them  into  effect,  or  vshich  are  illegal  m  their 
nature  or  character,  in  each  of  these  cases  the  con- 
sideration-ramaining  undisposed  of  will  he  ^^Id  by  the  trus- 
tee, not  for  his  own  benefit,  but  as  a  resulting  trust  for 
the  donor  himself  or  his  heirs  at  law  or  next  of  ^in 


XXIII.  EQUITY  JURISPRUIMTCS  JR.  108. 

according  to  the  nature  of  the  estate.   If  the  gift  is  void 
"because  it  violates  some  statutory  provision,  or  for  some 
illegal  purpose  a  trust  to  the  extent  of  the  estate  given 
will  result  to  the  donor  or  his  heirs  or  legal  representa- 
tives. 

Perry  on  Trusts,  160. 

Skellenger' s  Ex' rs.  v.  Skellenger ' s  Ex' rs. 
(32  N.  J.  Eq.  659;  Illus  cases  434) 

Bond  V.  Moore  (Illus.  Cases,  436) 
(90  N.  C. ,  239) 


oOo Dec.  19th  '02. 


XXIV.  T^OUITY   n:?ISr"?UD7C:;C"".JR.  110. 

L^CTi'EE  ::xiv. 

I    think  I   have    said  all   I    desire   to    say  upo.i  the 
sulDJect    of   resulting  trusts.   Is   you  rememlDer  v;e   divided 
all   resulting,   trusts   into  two   general  classes.    One    clc.ss 
comprised   all   those    cases  v/iiere   the    consiaere.tion  was 
paid  "by   one  p.- rty   and  the    le^^al  title   taken  "by  another, 
there   a   trust    resulted   in  favor   of   the  ptrty  furnisliini^ 
the   consideration.   The   second  class    ent races   those    cases 
where   a  trust    was   attempted,    hut   for   some   reason  failed, 
under   such  circiij-istances   a  trust   will  al^  ays    result    in 
favor  of   the   party   entitled   to   the   property. 

DICTATIO^'. 

Trusts   under   this   head  usually   arise   from  voluntary 
dis'"osit ion.    The   intention   of  the   testator   or   _,rantor 
that    £■.   trust    should  he   raised  must   he    ^c-thered  from  the 
terms   of   the    instrument   hy  which  the   y^roperty  is   conveyed 
and    the    surroundin^'   circumstances.    If    it   a  pears   that 
the   property   is   conveyed  axpressley  for  a  certain  purpose 
and  that   purpose   ca.nnot  he   accomplished  for  some    reason, 
then  a  trust  will  result.    If   it    appea,rs   t/iat   the  property 
is   conveyed   simply   sUtject   to   certain  conditions  that   do 
not    take   place,    then  no   trust    results,    hut   the   grantee 
takes   the   property  absolutely. 

Pomeroy's  Eq.    Jurist    Vol.    2,    par.    1033, 
Perry   on  Trusts,    157-150. 

I   v;ill  now  take   up   the    discussion   of   the  tarn   second 
of   the      two   general   classes    of  trusts   arising  hy   implication 
of   law,    namely,    constructive   trusts.    In  the   resulting 
trust   the    intention  to   create   a  trust    is   an  essential 
element    even  though  no   intention   is   expressed  in  direct 
v/ords    in   the    instnunent.      The    intention   is   inferred  from 
the   terms    of   the    instrument    or    t'le   accompanying   facts.    In 
constructive   trusts  fraud  is   the    essential  and  fmiiamental 
element.  '  ■ 

I'lCTATIOIT. 

In   the    resulting   trust    the    intention   is   the   has is 
of   the   trust;    in   a   constructive    trust   fraud  is  the   essential 
and"    fundamental   element. 

Pomeroy's  Pq.    Juris.   Vol.     .. ,    par.    10-.4, 

Constructive   trusts   are   trusts   which  equity   raises 
for    the   purpose   of  working   out   justice   where   the   legal 
title  to"  property  has  heen   obtained  through  fraud   of   the 
rights   of   the   person   ea^uitably   entitled  to   the   property 
and  when  the   property   is  '\eld   in  hostility  to    such  rights. 
If  a  person   occupying-  a  trust    relation  t«   another  by  means 
of  the   undue    influence   he    is    cble    to  bring  to  bear   uoon 
the    other   secures   certain   advantai:;,es   and  gets  property 


' 


ZXIV.  EQUITY  JTTRISPRITOENCE.JR.  111. 

from  the   party   occupyirifS   the    subordinate   position,    even 
though  the   lethal  title    to  the  property  may  be   formally 
Ci-^'-en  him,    equity  will   say  that   he  must  hold   that   pro- 
perty as   trustee   for    the  "benefit   of   the    defrauded  party. 
Equity  has    large   jur.-i  sdiction   in  this  matter   of   trusts.   The 
remedies   that    it   can   furnish  are   "broad  and  c  cmprehersive 
in  their  nature.    There   are    legal   remedies   tha,t    can  "be 
pursued   in  case    of  fraud  in  causing  property  to  "be   trans- 
ferred  from   one   to   another,    but    in  many  cases   these    legal 
remedies  prove   to  be    inadequate.      The   equitable    remedies 
which  have  been   devised  for   remedying   irregularities   in 
regard  to   trusts   are   very  broad   in  their  nature.   Really 
in  case   of   constructive   trusts  there    is  no  trust,    but 
cases   of  this   kind  are   based  upon  fraud,   Sut      the   equity 
courts,    whenever  a  person  by  means   of  undue    influence   takes 
advantage    of   and  defrauds  another  and  thus   gets  possession 
of  his  property,    will  make    of  him  a  tn^stee   of   the   pr«- 
perty  \;ho   thus    obtains   the   legal   title   for   the  benefit   of 
the   defrauded  party,    for    the   reason  that   thereby  courts   of 
equity   can  ar)ply  those      remedies   that   are  much  more  broad 
and   comprehensive   than  the    legal  remedies    in  such  cases, 

DICTATIOH 

In  case  of  the  constructive  trust  the  real  basis 
is  fraud.  The  trust  relationship  is  raised  by  equity 
simply  for  the  purpose  of  obtaining  a  relationship  over 
which  the  court  has  complete  control  and  jurisdiction.  There 
is  in  reality  n«  trust;  the  trust  is  constructed  by  the 
courts  for  tlie  purpose  suggested.  The  relation  is  really 
based  upt^n  fraud.  The  remedies  furnished  by  equity  when 
once  the  trust  relation  has  been  raised  are  much  more 
comprehensive  and  far  reaching  than  any  that  are  given  by 
a  court  of  law  simply  on  the  ground  of  fraud. 

Pomeroy's  Eq,  Juris»  Vol,  par.  1044. 

Perry  on  Trusts,  166, 
In  order  to  present  the  subject  somewhat  in  detail 
I  will  divide  such  trusts  into  several  general  groups  or 
classes.  The  same  principle  runs  through  all  these  classes, 
but  still  these  trusts  are  naturally  divisable  into  these 
classes  I  will  suggest, 

CLASSES  OF  COITSTRUCTIVE  TRUSTS, 

The  first  class  I  wish  to  discuss  comprises  those 
cases  v^here  money  has  been  obtained  by  a  party  that  does 
not  equitably  belong  to  him.  Under  such  circumstances  a 
trust  is  raised  in  favor  of  the  party  equitably  entitled 
to  the  money.  Suppose  a  person  standing  in  a  fiduciary 
capacity  has  got  possession  of  money  that  equitably  belongs 
to  the  subordinate  party,  equity  will  at  once  make  of  him 
a  trustee  of  that  money  for  the  benefit  of  this  person  and 
compel  him  to  account  to  the  person  defrauded.   Suppose 


XXIV.  EqUTTY  JXTRISPmrnETICE.    JR.  112. 

money  has   been  paid  "by  mistaice    of   fact    as   to   liability 
for  payment,    under   such  circumstances   the  ^arty   receiving 
the  money  upon   demand  for  the    return  and   refusal  makes   of 
himself   a  wrong   doer  and  a   constructive    trust   is    raised 
at    once.    In  most    of   the    states    it   would  be  possible   to 
bring   an  action   of  assumpsit    and  get   judgment   against 
the  party.   This    is  possible  because   the    equitable  principles 
have   got    into  the    law  and  is   so   enf forced  by   reason   of   the 
influence   of   equity  unon  th-^    law.    The   action   of  assumpsit 
is   one    of   the    equitable    actions   of   the   law.      But    sometimes 
it   becomes  desirable   and  absolutely  necessary  if  you  are 
to   secure   anything   of  benefit    for  your   client   to  go   on  to 
the   equity   side   of   the   court,   beca,use  you  can   only  get   a 
judgment   for   damages   on  the    law  side   of  the    court,    while 
in  a   court    of   equity  you  can    subject    to   the  processes   of 
the   court   the  money   itself   or  the   proceeds    of  the  money. 
If   a  man  has  money   in   a   safe  he    can  keep   it   there   and   it 
is  usually  out    of  the  way   of   a  legal   execution,    but   he 
cannot    keep   it   beyond  the   reach  ef  the    searching  processes 
of   a  court    of    equitjr, 

DICTATION 

(1)  Wnen  money  has  been  obtained  by  a  party  that  does 
not  equitably  belong  to  him,  a  constructive  trust  is  at 
•nee  raised  in  favor  of  the  party  who  is  benef icia.lly 
entitled  to  it,  Fer  example,  a  trust  may  be  raised  in  re- 
gard to  money  that  has  been  paid  by  mistake  of  fact,  if 
the  party  to  whom  it  has  been  paid  fraudulently-  refuses- 
to  account  forit.   The  fact  that  at  the  present  time  a 
party  may  sue  at  law  for  the  money  so  obtained  does  not 
take  away  equity  jurisdiction-   Y'e  are  frequently  obliged 
to  go  into  a  court  of  equity  in  order  to  make  use  of  its 
processes  for  reaching  the  identical  money  or  its  proceeds. 

The  second  class  embraces  those  cases  where  property 
which  is  in  fact  impressed  with  a  trust  is  trans-erred 
by  the  trustee  in  violation  of  his  duty  to  a  mere  volunteer 
or  a  purchaser  having  notice  of  the  trust  relation,  then 
such  a  transferee  takes  the  property  subject  to  the  same 
trust  that  before  existed.   A  trust  of  this  kind  is  one 
that  the  law  raises  for  the  protectisn  ©f  the  beneficiary. 

DICTATION 

(2)  class  embraces  all  of  those  cases  in  v.hich  property 
that  is  impressed  with  a  trust  is  transferred  by  the  trustee 
in  violation  of  his  duty  to  a  mere  volunteer  «r  to  a  pur- 
chaser witn  actual  or  constructive  notice  of  the  trust. 


jfM^  EqUTTY  JDRI  SFRIIi:)EIICE .    JE.  113. 

In   sudtP^KWa&oe   the   transferee   takes   the  pro;^'erty   subject 
to  the    same   tflnrgt   that  "before   existed.   The   express   active 
trust    is  hy  the    w^aoarytiron   changed   into   a  constructive 
trust. 

Pomeroy's  Eq«    Juris,   Vol,    2,    par.    1048. 

I'hen  a  person  acting   in  a  fiduciary   capaci+y  purchases 
property  with  tixist   funds   and  talres  title   in  himself  with- 
out  any  declara-cion   nf   trust,    equity   raises   a  trust    in  favor 
of   the    real  "beneficiary.    If   an   agent   purchases  property 
with  his  principal's   funds,    equity  raises   a  trust    in  favor 
of  the  principal,,    In  cases    of   that    kind  equity   raises   a 
trust   without    3vidence   of  the   intention  to  violate   the 
relation,    in  accordance  with  the  maxim  that   equity   imputes 
an   intent   to   fulfill  an   obligation.    As   a  matter   of   fact 
the    inten"cion   is  directly   opposite  from  that  presumed  by 
the   coi'.rt    of   equity, 

DICTATIOH 

(3)  When  a  person  acting  in  a  tmst  capacity 
purchases  property  with  trust  funds  and  takes  title  thereto 
in  his  ovm  name  without  disclosing  the  trust  in  the  instru- 
ment of  conveyance,  a  trust  is  raised  by  construction  in 
favor  of  fbxe  person  beneficially  entitled.   This  trust  is 
called  by  some  a  resulting  trust  for  the  reason  that  in 
the  absence  of  fraud   it  is  raised  as  the  result  of  a 
presumed  intention.  As  a  matter  of  fact,  however,  in  most 
cases  of  this  kind  we  find  fr&ud  either  actual  or  construc- 
tive and  so  the  trust  is  properly  called  a  constructive 
trust.   The  doctrine  applies  to  trustees  proper,  executers, 
guardians,  partners  purchasing  property  with  partnership 
funds,  in  fact  to  all  persons  who  stand  in  a  fiduciary 
relation  towards  others. 

Ferris  vs,  "Van  "Vechtendllus  Cases  page  453) 

Ward  V.  Armstrong (84  111,  151. 

45  ?Iaine,  52. 

The  fourth  class  is  an  important  one  because  we  very 
frmiuently  meet  with  cases  falling  under  it.  This  class 
embraces  cases  where  a  member  of  a  partnership  without 
the  knowledge  and  consent  of  his  copartners  has  taken  a 
renewal  lease  for  his   ov/n  benefit  of  the  promises  occupied 
by  the  firm  as  tenants,   Take  for  example  the  case  of 
Mitchell  V.  ReadUHus  cases  page  472):   Here  two  partners 
had  leased  and  occupied  ,  for  hotel  purposes,  the  Hoffman 
House  in  New  ^ork;  they  spent  considerable  amoxint  of  money 
ir  furnishing  the  house  and  making  valuable  improvements 
and  largely  enhanced  the  rental  value  of  the  premises.  Just 
before  the  expiration  of  the  lease  of  the  property  one  9f 


XXIV,  EQUITY  JTJRISPRXTOT^CE.    JR.  114. 

partners    obtained  a   renewal   leasa    in  liis    o^oti  name,    for 
terms  .commencing  at    the   expiration   of  the   partnership   leases. 
Equity  under   such  circumstances    said  that    it  was   a  fraud 
upon  the    other  partner  for  the    one   partner  to   get   the 
entire   control   of  the  property.  Equity  under  such   circum- 
stances   says,"  You  have   the   legal  title  hut   wo  v;ill  make 
cf  you  a  trustee    of  .the   lease   for   the  "benefit    of  the   part- 
nership, " 

DICTATION 

(4)  If  a  memher  of  a  partnership  without  the 
knowledge  and  consent  of  his  copartners  has  taken  a  renewal 
lease  for  his   own  "benefit  of  premises  occupied  "by  the 
firm  as  tenants  such  lease  will  innure  to  the  "benefit 
of  the  'vhole  firm.  The  party  getting  the  lease  is  made  a 
constructive  trustee  thereof  for  the  "benefit  of  the  firm, 

Mitchell  V,  Read(Illus  Cases  page  472) 

Pomeroy's  Eq.   Juris,   "'.'"ol,    2,   par.    1050, 

Perry   on  Trusts,    196, 

^oOo Jan   8th    '02, 


IXy.  EOUITY  JURISPRUDEJCE.    JE.  115. 

LECTUEE  XXV. 

■"■■heneTer  there  ht  b   teen  a  wrongful  appropriation  or 
conversion  into  s   different  form  of  anothers  property  a 
constructive  trust  arises  in  favor  of  the  person  who  has 
been  defrauded.  The  conversion  may  be  made  by  one  who  is 
a  trustee  or  by  one  not  eccupying  &  trust  relation  at  all. 
In  the  constn.''.ctive  trust  of  this  kind  a  wrongful  intent 
is  always  present.  In  such  ctses  the  party  converting  the 
property  of  another  into  a  different  form  intends  to  violate 
the  fiduciary  duty  and  to  commit  a  wrong  tov/ards  the  other. 
In  such  cases  an  intent  to  violate   the  fiduciary  relation 
is  an  essential  element.  It  is  in  this  necessary  presence 
of  wrongful  intent  that  this  group  differs  from  the  third 
group.  In  constructive  trusts  of  the  third  group  the  court 
assumes  that  the  person  is  actin,^;  in  accordance  with  the 
terms  of  the  trust,  it  does  this  by  force  of  a  majcim  well 
known  to  you.  In  constructive  trust  ■under  this  head  we 
are  now  considering  an  intentional  wrong  is  always  apparent 
and  there  is  no  room  for  an  assumption  to  the  ccntrary.  If 
it  a"^pears  that  an  agent  has  wrongfully  securities  belonging 
to  his  principla  and  purchased  property  in  his  ovm  name, 
a  constructive  trust  of  this  kind  will'be  raised  in  favor 
of  the  principal.  The  doctrine  as  I  have  already  suggested 
is  capaple  of  wider  application.  If  a  pt-rty  v.ho  is  not 
acting  in  a  fiduciary  capacity  fraudulently  converts 
property  of  another  into  a  new  form  a  constructive  trust 
■will  be  raised  and  attach  to  this  property  or  its  proceeds. 
The  case  of  Newton  v.  Porter  is  a  good  illustration  of 
constructive  trust  of  this  class  where  there  is  not  estab- 
lished fiduciary  relation  betv/een  the  parties.   It  seems 
that  in  this  case  public  securities  were  stslen  and  that 
the  person  who  had  appropriated  them  afterwards  negotiated 
these,  securities  t«  an  innocent  purchaser  for  value  and 
received  from  that  purchaser  eertain  securities.  When 
arrested  and  prtceeded  against  on  the  civil  side  they 
retained  certain  attorneys  to  defend  them  and  turned  over 
to  these  attorneys  as  a  consideration  for  their  services, 
certain  tf   these  securities  that  they  had  received  from 
the  sale  of  the  stolen  bonds.  The  attorneys  took  the 
securities  with  notice  that  they  were  the  proceeds  of  the 
sale  of  the  stolen  bends  or  had  such  knowledge  of  the  facts 
as  would  naturally  lead  them  t  o  believe  that  such  was  the 
case.  The  court  said  that  these  attorneys  must  be  held  to 
have  taken  these  secutities  with  ntticc  of  the  whole  trans- 
Vjtitn  and  made  of  the  attorneys  trustees  of  these  securities 
f«r  the  benefit  9f   the  party  defrauded  by  the  theft  of  the 
"bonds  and  compelled  the  attorneys  to  assign  the  securities 
to  the  party  equitably  entitled  to  them.   Now  property  or 
Its  proceeds  by  virtue  ef  the  trust  relation  that  I  am  at 
the  present  time  discusaing,  may  be  traced  through  various 
:^orms  and  may  be  impressed  with  a  trust  in  favor  ef  the 
party  beneficially  entitled.  It  makes  no  difference  how 

i 


XrV.  EQUITY  JUniSPRUDEITCE.  JR,  116, 

extensive  the  change  so  Isng  as  indentifi cation  is  passible. 
Identification  ef  the  species  is  not  necessary,  but  identi- 
ficc.tion  ®f  the  substan  e  is  sufficient;  so  Icmg  as  that 
is  possible  the  trust  may  be  raised.  Actual  identification 
is  sometimes  impassible  because  the  property  has  been 
lost  in  a  larger  mass,  but  if  yrau  can  show  that  the  pro- 
perty has  gone  int©  the  mass  and  still  remains  there, 
tinder  the  modern  rule  this  is  sufficient  t»  raise  the 
trust.  Where  the  property  has  gone  int»  the  hands  of  a 
bona  fide  holdei'  or  purchaser  f«r  value  w:"J"hcut  n«tice, 
then  the  property  canr.'^t  be  followed.  The  unuerlying  prin- 
ciple is  fraud,  but  the  fraud  in  this  case  is  not  inferred 
fraud,  but  actual  fraud  that  can  be  shown  and  that  is  «»#cn 
and  palpable, 

DICTATION 

(5)  \?henoyer  there  has  been  a  wrongful  appropriation 
»r  conversisn  into  a  different  form  rf  property  belonging 
to  another  a  constructive  trust  arises  in  favor  of  the 
party  who  has  been  defrauded.  In  the  cases  falling  under 
this  head  there  must  appear  an  intent  to  violate  the  fid- 
uciary duty  or  acts  that  result  in  the  fraudulent  ontain- 
ing  of  property  belonging  to  anether.  Although  the  cases 
are  suaully  those  in  which  a  fiduciary  relation  exists,  yet, 
they  are  not  necessarily  s®o  If  a  party  not  acting  in  a 
trust  capacity  fraudulently  converts  the  iprcperty  of  another 
into  a  new  form,  a  constructive  trust  is  raised  and  attaches 
t',  the  property  i^r  its  prosceeds  so  long  as  they  can  be 
identified  and  have  not  passed  into  the  hands  ef  a  b«na 
fide   purchaser  for  value  and  without  notice  <, 

ITewton  Vo  Porter (Ilus  cases  page  469)  69  N.Y.,  133. 

31  Calif  17, 

Pomeroy  Eq,  2,  1057^ 
A  constructive  trust  of  the  kind  under  consideration 
frequently  arises  \;nder  circumstances  of  great  practical 
importance.  It  was  in  the  year  1869  sr  thereabouts  that 
the  English  Court  of  Chancery  in  a  case  in  which  Sir  Geo, 
Jessel  gfve  the  principal  opinion,  deoided  that  in  tracing 
trust  property  a  trust  would  result  if  the  property  itself 
or  t'io  immediate  proceeds  could  be  identified.  Previous 
to  this  decision  it  was  held  that  where  trust  property 
was  mone   for  instance  it  could  net  be  traced  after  it 
had  passed  out  cf  the  hands  of  the  trustee  and  hac  gone 
into  a  larger  mass  for  the  reason  that  money  he.s  no  ear 
marks,  there^'^'re  there  is  n®  way  of  identifying  the  part- 
icular m.oney.  So  if  money  got  into  v   larger  mass  the  means 
of  identification  v/ere  gone  and  the  beneficiary  cannot 
follow  the  property  any  longer,  but  must  rely  upon  the  per- 
sonal liability  ®f  the  trustee.  In  this  case  it  appears  that 
a  bailee  of  certain  funds  had  deposited  those  funds  in  a 
bank  to  his  own  credit  and  after  his  death  the  beneficiary 
sought  to  have  the  property  impressed  with  a  trust  in  his 
favor.  The  defense  was  that  the  money  having  gone  into 
a  larger  mass  could  not  be  identified  and  therefore  no 
trust  could  be  impressed  upon  it  and  the  party  was  relegated 


I2y.  EQUITY  JURISPRUDENCE, JR,  117. 

in  his  action  to  a  suit  against  the  estate  of  the  trustee. 
But  the  court  in  this  case  said,  that  is  the  old  doctrine 
of  equity,  tut  we  hare  got  teyond  that  doctrine,  and  we 
pronose  to  make  a  departure.  The  court  held  that  v/hever 
you  can  identify  trust  property  as  haring  gone  into  a 
larger  mass  and  that  it  has  not  gone  out  of  the  mass  you 
are  in  a  position  to  impress  the  mass  with  a  trust  to 
the  extent  of  your  prcperty,  A  case  arose  in  the  state 
of  Wisconsin  in  which  a  man  wh«  had  "been  accustomed  to 
deal  with  a  local  "bank  stepped  int«  that  bank  one  day  vTith 
a  draft  on  Chicago  and  said  t»  the  banker  he  wanted  the 
cash  for  it;  the  ban]fer  said  that  he  could  not  pay  it 
that  day  but  he  would  take  the  draft  and  send  it  for 
collection  and  for  the  man  to  come  in  in  the  course  of  a 
few  days  and  he  would  pay  him  the  cash.  The  man  said  all 
right  and  gave  him  the  draft  and  took  an  ordinary  receipt 
in  return.  By  the  transaction  a  special  deposit  was  createat 
for  the  collection  of  the  draft.  The  banker  sent  the  draft 
to  Chicago  and  asked  the  Chicago  correspondent  to  please 
credit  him  with  the  daof  t ,  v/hich  the  Chicago  corresTJondent 
did  and  he  then  proceeded  to  draw  gainst  the  fund  in 
Chicag*  and  by  his  checks  to  pay  his  individual  indebted- 
ness. The  owner  of  the  draft  called  in  a  few  days  and 
was  put  off  by  the  banker  saying  that  he  would  pay  him  in 
a  few  days,  returning  one  day  he  found  the  bank  cltsed.  The 
question  came  up  v/ho  was  to  stand  the  loss.  The  man  that 
left  the  draft  claimed  that  under  the  circumstances  a  trust 
relation  existed  between  the  banker  and  him  with  reference 
to  that  draft  and  its  proceeds;  that  the  bank  received 
the  draft  for  collectien  when  it  new  it  was  in  a  failing 
condition  and  instead  of  collecting  it  deposited  the  draft 
to  his  own  account.  And  so  raises  a  constructive  trust 
in  regard  to  the  draft  in  favor  of  the  owner.  The  attorneys 
for  the  defense  said  that  is  good  law,  we  do  not  object 
to  that,  but  in  order  that  you  may  impress  the  proceeds  of 
the  draft  with  this  constructive  trust,  you  must  first 
find  them.   It  appeared  when  the  proceeds  ©f  the  bank  were 
linked  into  that  there  was  only  about  two  hundred  dollars 
cash;  the  prnceeds  of  the  draft  had  all  been  used  up.  The 
attoEnj?ys  f*r  the  defense  said  it  must  be  shown  that  the 
property  is  identified  or  it  must  be  shown  that  the  pro- 
perty has  gone  into  a  larger  mass  and  still  remains  there. 
The  attorneys  for  plaintilf  said,  that  is  not  necessary, 
that  is  not  in  accordance  with  the  reasoning  of  Sir  Getrge 
Jessel,  It  is  not  necessary  to  trace  them  intt  a  larger 
mass  if  we  show  that  the  proceeds  of  the  draft  have  been 
«UBed  by  the  debtor  to  pay  his  individual  debts,  he  has  by 
that  process  to  that  extent  enlarged  his  general  estate 
and  so  having  enlarged  the  estate  to  that  extent  the 
estate  should  be  impressed  with  a  trust.  The  court  hero 


.....  I. .    .  , 


;  (■  ■•  ■'■' 


;;ft  . 


1  v:-i- 


^IKV.  EQUITY  JURISPRUnSNCE.    JR.  118. 

HELD  THAT   UmZR   THOSE   CIRCITjISTAITCSS   TIE   GENERAL  ESTATE    OP 
THE  RECEIVER  \7AS  In^ressed  with   a  trust   in  favor  of   the 
owner   of  this  draft   and   to   the   extent   of  the  draft   r.-ith 
interest   and   that  he  was   a  preferred  creditor   to    that 
extent.      This   decision  was  carryin-  tlie   case  farther   tlian 
the  English  Court   carried  it.      There  was  a  previous   caae 
in  New  York  in  which  it  was  thought   the   court   carried 
the  doctrine   to   thJ.n  extent,    and  undoubtedly  ha     its   in- 
fluence on  the  Wisconsin  case.      A  year   or  two   later   after 
the  decision  in  V/isconsin  a  case   arose  in  the   state   of 
N'dw  York  in  which   the  Court  of  Appeals   said  that   the 
profession  had  misunderstood   the  for.^er  case  suid  laid 
down  what   it   considered   the  rule   in   this  regard,   which   is 
this:    "You  can   impress   property  with   a  trust  where  you 
can   show  the   trust  property  or   its  proce«»ds  have  gone   in- 
to  a  larger  mass   and  reinain  in   that  mass  even  though  the 
particular  property   itself  cannot    be   identified  and   that 
is   the  doctrine  that    is    supported  to-day  "by  the  weiglit 
of   authority. 

DICTATION. 

Constructive  trust  of  the  class  under  consideration 
frequently  arise  where  coamercial  paper  is  deposited  with 
a  "bank  for  collection  and  the  proceeds  of  the  paper  are 
misappropriated  by  the  bank.   Under  such  circumstances 
if  it  appear  that  no  part  of  the  proceeds  passed  into  the 
hands  of  the  receiver  the  person  depositing  the  paper  will 
be  rimply  a  general  creditor,  if,  hov/ever ,  the  proceeds  are 
in  the  hands  of  the  receiver  the  depositor  is  a  preferred 
creditor.   The  principle  is  this,  property  impressed  with 
a  trust  will  be  preserved  by  the  court  for  the  benefit 
of  the  cestui  que  trust  so  long  as  the  property  or  its  pro- 
ceeds can  be  trj.ced  even  thou;^  tlie  proceeds  form  a  part 
of  a  larger  mass.   Trust  money  for  example  may  lose  its 
identity  by  being  deposited  with  general  funds  of  the 
trustee  but  under  the  modern  holding,  the  general  fund, 
if  the  trust  money  still  remains  there,  will  oe  inures sea 
with  a  trust  to  the  extent  necessary  for  the  protection 
of  the  beneficiary. 

I  should  not  leave  the  subject  before  su;;gesting 
that  the  course  of  reasoning  in  the  state  of  Visconsm 
is  rather  an  interesting  one.   The  court  in  thxs  case 
was  a  divided  court,  the  majority,  however,  sustained  the 
extreme  doctrine.  A  few  ye^rs  later  another  case  ce.me  up 
and  this  doctrine  was  again  sustained  but  in  t..i3  case 
Judge  Cassidy  who  led  the  opposition  to  t-.e  f  ctrine  go- 
one  more  judge  on  his  side.  And  then  a  tnird  case  c.^e 
ut)  and  the  holding  of  the  court  was  U\e   surr.e.   Ani  a 
?ou??h  case  =Le  3p  and  by  t:..at  tl^e  Jud.e  Cassidy  succeeded 
in  setting  another  Judae  on  his  side  and  the  court  turned 


■i  :•    i  ■ 


XXW.  EQUITY  JTJRISPRIinFITCE.JR.  119. 

around   and  repudiated  the   doctrine    laic'   c'o-wn   in  the 
66    of  Wis,    401,   But    still   one   judge   held   out    upon   Ihe 
graiind  that   the   effect    of   the   repudiation   of  the   former 
doctrine  upon   the   cominercial  conditions   would  he    such  that 
e.  change  was  unwise.   At   the  present    time    this   case    in. 
the   66  'Jis,    is  no    longer   law. 

Slater  v.    Oriental  liills'Illus   cases  page   458) 

18  R.I.,    352) 
Nonotuck   Silk  Co   v,    Glanders (Illus   Cases,    460) 

(87  Wis,    237) 
American   Sxigar  Refining  Co.    v.   Pancher 

(Illus.    Cases,    463; 145   H.Y.    552) 
Cavin  v.   Gleason( illus .   Cases,    467) 
(105   II. Y,  ,    256) 
Contra, 

66   V:isc  ,    401. 

Meyers  v«   Board   of  Education (32     Pac  Rep.,    268) 


oO® Jan  9th    '03. 


XXVI,  EQUITY  JURISPRUDENCE.  JR.  120. 

LECTURE  XXVI. 

I  was  speaking  to  ?'ou  at  the  cIdso  of   the  last  lecture 
upon  the  subject  »f  tracing  trust  funds  and  had  loft  the 
matter  in  a  rather  unsatisfactory  condition.  The  old  rule 
in  regard  to  the  tracing  •f  trust  funds  was  that  tjie  trust 
property  could  only  he  impressed  with  with  a  lieA^'in  favor 
•f  the  ccstuy  que  trust  when  the  trust  property  6an  he 
specifically  identified.  That  rule  is  not  in  force  now 
in  any  of  the  states.  This  rule  was  changed  to  the  follow- 
ing: courts  will  suhjet  trusts  funds  to  the  lien  of  the 
cestioy  qua  trust  so  long  as  the  funds  themselves  or  the 
profits  or  proceeds  thereof  could  be  identified.   This 
lien  would  not  Attach  if  the  funds  had  got  into  the  hands 
of  a  bona  fide  purchaser  for  value  and  without  notice. 
This  is  the  rule  generally  followed  in  this  country  when- 
ever trust  funds  have  been  misapplied  or  dissapated  by  the 
trustee.   In  some  of  the  states  the  rule  has  been  still 
further  liberalized  which  follow  the  famous  English  case 
that  was  decided  in  the  eighties  in  which  Sir  George  Jessel 
first  took  the  position  that  identification  either  in 
species  or  in  the  proceeds  was  not  necessary.  That  it  was 
sufficient  if  substantial  identification  be  made.  That 
money,  which  the  courts  had  always  said  had  no  ear  marks, 
and  could  not  therefore  be  identified  if  mixed  with  a 
larger  fund,  may  be  identified  in  this  way,  by  the  court 
imposing  a  special  lien  upon  the  larger  svrni  to  the  extent 
of  the  money  which  had  gone  into  it.  That  is  the  rule  in 
most  of  the  states,  I  tried  to  illustrate  this  rule  by 
i*eferring  to  several  banking  cases  where  commercial  paper 
had  been  left  for  collection;  under  such  circumstances  if 
the  paper  is  simply  left  for  collection,  the  ordinary  bank- 
ing relations  of  debtor  and  creditor  is  not  raised,  but 
the  relation  between  the-  bank  and  the  one  depositing  the 
paper  for  collection  is  one  of  trustee  and  cestuy  que 
trust.  That  relation  exists  particularly  if  the  bank  is 
in  an  insolvent  condition  at  the  time  the  paper  was  received 
for  collection.  If  subsequently  the  banker  attempts  to  mis- 
appropriate the  funds  to  the  payment  of  his  own  indebted- 
ness, a  constructive  trust  arises  in  favor  of  the  party 
depositing  the  paper  for  collection.   Some  of  the  V/estern 
states  went  so  far  as  t»  hold  that  if  the  proceeds  of  the  • 
draft  were  used  for  the  paym«a>t  of  the  banker's  individual 
indebtedness,  that  his  estate  was  thereby  s«  much  increased 
and  a  lien  should  be  imposed  upon  his  estate  in  the  hands 
of  the  assignee  irrespective  of  the  fact  that  none  of  the 
proceeds  of  the  draft  had  gone  into  the  hands  of  the 
assignee.  But  this  doctrine  has  been-  repudiated  in  most 
of  the  states  and  is  no  longer  Law. 

Albany  Law  Journal  Vol.  48, 20, page  384. 


'  hencTer  a  trustee    or  perso.i  i.ctin,^   in  c.  f  i(  uc- 
ic.ry  capc.city   i  cq\-.iros   t'l^   title    or     '^sn^f icial  use 
of  property   Dy  tcJcin:,   ..o.v£-.ntc.,,e    of   •:he  trust    rel  tion 
equit;-  impresses   .    constructive   trust   upon  t-.ie  property  in 
iT.-or   of   the    of   tlie   cestuy   que   trust,      /    trustee  jic.s   :io 
^i"""--^   ■'- 0  ■^urc"'"r.sc  prop'^rty  c'irec '•■  ly    ""oni  f-'e    cestuy   cjue 
trust,   "^urc'-'f.ses    of   tV  t   kind  are   constructively  f rcuculrrnt , 
I   do   not   mean   tlu  t   a   sale    of   t]\c.t   Itinc:   ■  ill  never  he 
sustained,    "but    it    is   constructively  f  rauculcat .    r.ie   "burden 
is   then   Cc..st   u"jon  t'-ic   trustee   to   shovr  thi.t   tl-.e   transaction 
is    open  i-.m    alDOve   'ooard  anc    \-l.s  raiCe   ;.;-.on  a   ful  consic  cr- 
ftion  and  ;;as  made  •■■ith  i    cestuy   que   trust   Vjdio  v;as   entirely 
com'^-etent    of  unc  e r st c  nd in,.    t]ic    situation  of   the  parties 
c  nc   t'le   relation   of   •:he   property.   Tji  lin_s  bet^./oen  t]ie 
trustee   and  "ho    cestu;'^   que   trust   are  presviaatly  frau-.  ulent 
that    result    in  the    '--rcnsfer   of      ro.^    rty  to  the    trustee   and 
the   trustee    is   chan,,.ed  from  hi  ex  -rcss   tru.ste-3   to   a   con- 
structive  trustee, 

DICT.  Tio:^ 

(6)   "jienever   ,.    person   tctins   in  a  ficuci?.ry  a'f^city 
or   i    trustee   acquires   t'lc   title    rnd  beneficial  use    in  the 
trust   ;'ro      rty    iuEelf   or   realizes   a  "benefit    'i:>.3ref rom  ":y 
ta..:ino  acva;lta^,e    O-    ■:h-j   trust    role  tion,    eqi-.ity   im  resses 
a  constructive  trust   u")on  t?ie  prq^ocrty   or  profits    in  f  £  ^'or 
of  th?    ori.,_inal   Luncf iciary.    It    is    improper  for   tP.e    trustee 
to   ;')Ui-chase   trust   property   from  t'-.a   honef icii  ry .    ^uch  a 
transf.cticn   is    constructively  f  ri  viculent . 

■^omeroy  "'ol,    ..,    105., 

"^erry  Trusts,    194-5. 

There    is    one   more   class    of   constructive   trusts  \/hich 
is   a   lart~e   a.^d   com  ro'isnsive    class.    Those   trusts  are 
sometimes   called  trusxs   ex   delicto.    They  arise    out    of 
actual  "-lositive   -/ron,;  doins.    The"  are  trusts  f.tvt   arise 
throu, 'i.  actui  1   f   aud,    undue    influence,    th.     ta    in^;^  advanta(_,e 
of   the  wea'.nesses   or   -lecessity   of   a  pi  rty  a..d   in   si-iilar 
ways.    ,    If   a  person    'jrocures   i    bequest   to  be  m£,de    in  ::is 
name    instead   o.,'   some    ot-ier  person   '.'.'hom  the   testator   in- 

Viis  b;-  means    of  promises   and 
'l      t'-ie   bequest    to   the  ben:!fit 


tencod   t 

0   b-nefit   ant 

C  0^ 

3S 

assuranc 

es  th< 

.t   he    ■  i 

11 

P 

of   si.ich 

other 

person 

and 

8. 

J.     iy  (J 


r   t]ie    c  eath   of   the   testrtor 


refuses    so  to    do  an-,     insists   tipon  lc?ep:.ns    :he  property 
for  his    ovn  benefit,    u:icc.-   such  circujastanc-^s   equity  \7ill 
make    of  him  a   trustee   for   the   benefit    of   the   person  v/"'om 
the   tes'Cator    inten   ed  t«  hc.ve   "he   benefit    of  •:he  property, 
■."onstructi^-e   trusts  uncer  this  head   may  arise   unc'^er  circum- 
stances   lihe    -che   f ollov/in^,:    A  man's   pro:')3rt-     is   L.bcut   to 
be    sold  uncer   i    mor  ,i:-a^;e    or  under   er.ecution  anc    the    debt 
for  v/hich   it    is   to  be    sold   is   much   smaller   in  amount   th£ui 


XXVJ.  EQUITY  JURISPHTOENCE.JT^.  *  122. 

the  value-  of  the  property.   He  goes    to  the  mortgagee   and 
says, "I    do  not   want   to  gO" around  and  find   somebody   to 
hid  off   that   property,    if   I   can  get    a  little  more   time   I  can 
pay  the   deht ,    and  v/hat    I  want    is   that   you  will  take   the 
title   to  that   property   on  the   sale   and  hold  it   for  me  \m- 
til   such  a  time   as   I   can  make  payment    of  the   debt,    say 
two  years   from  this   dat.e . "  The   other  party   says   very  well, 
I  will  do  that   for  you  and  "bids    in  the  property.   The   deed 
is.  made   directly  to  hlfeji  and  when  the   two  years   come   round 
the  mortgag<)r  goes   to  the"  mortgagee   and  says  to  him  I   am 
ready  to   redeem  the   property.   The  mortgagee   says,  "You 
can't    redeem  the  property  for  it   "belongs  to  me."    "You 
cannot    enforce    an   oral  agreement    for  the   transfer   of  real 
estate*"   Of   course' an   oral  agreement    is  not   binding  for 
the   transfer   of   real  property,    but   you  can  call  upon  the 
processes    of  equity   and  compel  him  to   transfer  the  pro- 
perty to  you,    basing  the    action  not   upon  the   oral  promise, 
but   upon  the   fraud.   There    is   nothing  that   will  uplift   and 
displace    the   Statute    of  Frauds  as  will  fraud  itself  because 
the   Statute    of  Jrauds  will  never  be   enforced  when  the 
effect  will  produce   fraud. 

DICTATION 

(7)    The   last   class   of   constructive   trusts  are   called 
trusts   ex  delicto}    tuusts  that   arise   throiigh  actual  fraud, 
mJ.srepresentation,    concealments,    undue    influence,    the 
taking  advantage    of  the  weaknesses   or  necessity  of  a  party 
and   similar  ways. 

Ryan  v.   Dox(Illus  Cases,    480) 

(34  1-T.Y.,    307) 
Edwards  v,   Culbertson(Illus.   Cases   485) 

(111  N.C.    342) 
In   re   0'Hara(Illus   Cases,    487) 

(95  N.Y.    403) 
Curdy  v.   Borton(Illus.    Cases,    493) 
(    79   Cal.    420) 

DICTATION 

There  are  a  few  trust  relations  that  are  not  susceptible 
of  a  classification  that  will  bring  thom  under  any  of 
the  v/cll  known  heads.  It  is  perhaps  best  to  speak  of  them 
as  improper  trusts.  I  refer  to  the  trusts  existing  between 
vendor  and  vendee,  between  partners,  or  in  regard  to  sur- 
viving partners. 

Pomeroy  Eq.  Vol.  2,  1046. 

Before  leaving  the  subject  of  constructive  trusts 
I  wish  to  impress  upon  you  that  equity  regards  the  cestuy 
que  trust  as  the  real  ov/ner  and  entitled  to  all  the  rights 
and  consequences  of  ownership  of  the  trust  property  in 
case  of  constructive  trusts.   The  effort  of  the  beneficiary 
is  always  to  put  an  end  to  the  trust  relationship  at  the 


XXVI,  EQUITY  JTJRISPRUTENCE.jn.  123. 

earliest  possible  moment, 

I   will  now  pass   on  to    the  next   subject,    namely,    the 
powers,    duties   and  liabilities   of   trustees   generally. 

THE  PO^/TRRS?   DUTIES   AlU)  LIABILITIES   OE   TRUSTEES   GEUERA-LLY 

The   responsibilities  and  duties   of   the   trustee 
begins  v/ith  the   acceptance    of   the   trust.   Acceptance  may 
be   formal,    that    is,    in  writing,    either  by   indorsement   upon 
the   trust    instrxTment    or   in  a   separate    instrument    or   it 
may  be    informal,    that    is,   by  taking  possession   of   the 
trust  property,   Vhen  a   trust  has   once  been   accepted  the 
relation  cannot  be    repudiated  by  the    trustee.  He   can  be 
realeased  from  the   trust'  relation  then,    only  by  direction 
of   the  court    or  by  the   consent    of   the   parties    interested. 
The   trustee  may  alv;ays   refuse   to   accept   and  it    is  his   duty 
to   do   so   if  there   is   any   reason  1jhat   he   cannot   act    fior 
the  best    interests   of   the   beneficiary, 

Pomeroy  Eq.   Vol,   2,    1060, 

Perry  Trusts,    259,261,401, 

Bisphan,    135-9» 

0 Jan,    15    '03, 


XXVII.  EQUITY  JimiSPRUDElICE.JR.  125. 

LECTUKE  XXVII. 

0-  — 

The  office  of  the  trustee  is  one  of  ccnf idence ,  It 
follows  from  this,  that  the  duties  of  the  trustee  can  never 
be  delegated.    The  trustee  has  no  right  t<!,  confer  up»n 
another  the  authority  that  has  "been  ccnf  erred  upon  him 
hecaiise  the  trustee  is  selected  "because  of  some  quality 
that  the  perscn  making  the  selection  thinks  he  possesses. 
If  he  does  so  and  a  Ickjs  occurs  or  the  prsperty  depreciates 
in  any  way,  the  trustee  will  te  personally  liahle  and  ^es- 
ponsi"ble  therefor.  But  this  propositi-jn  is  not  so  comprehen- 
sive as  to  mean  that  the  trustee  must  personally  perform 
every  duty  of  the  trust.  His  authority  cannot  be  delegated, 
his  discretion  cannot  he  delegated,  "but  he  may  perform 
duties  through  ai.:ents  that  are  ordinarily  performed  through 
agents.  He  may  do  anything  through  su'bordinates  that  is 
ordinarily  so  done  in  the  conducting  of  a  "business  like 
those  he  is  conducting  as  trustee.  It  is  his  personal 
judgment  zx.d   personal  discretion  that  he  cannot  delegate. 

DICTATION 

The  duties  of  the  trustee  are  personal,  they  cejinot 
"be  delegated  to  another,  that  is  to  say,  the  personal 
discretion  and  judgment  of  the  trustee  can  never  ve  delegated. 
He  may  perfonn  through  agents,  attorneys  and  managers  such 
duties  as  are  ordinarily  performed  by  such  subordinates, 
but  he  cannot  properly  deleg  te  t»  them  his  judgment  or 
discretion. 

Perry  Trusts,  402-410. 

Seally   v.    Hill   49   \7is.    473. 

Pomer»y  Eq,  2,  106S. 

In  re  Weall  (42  Chan.  ^■?y,    674jlllus  cases  496 


DICTATION 

The  first  duty  of  the  trustee  is  to  take  poss- 
ession of  the  trust  property,  collecting  debts  and  convert- 
ing perishable  property  into  cash. 

Bispham  Eq ,  139, 

Perry  Trusts  438-9, 

After  he  gets  the  trust  prrperty  into  his  possession 
the  trustee  is  in  a  position  to  carry  out  the  trust.  His 
next  duty  is  to  carry  the  trust  into  executian.  And  in 
carrying  the  trust  into  execution,  the  trustee  must  conform 
to  certain  established  rules  and  requirements.  In  the  first 
place  he  should  conform  strictly  to  the  requirements  of 
the  instrument  by  which  the  trust  is  created.  When  the 


XXVII.  EQUITY  JURISPRUDENCEoJR.  126. 

trustee  is  in  doubt  as  to  the  meaning  of  the  directions 
and  requirements  contained  in  the  instniment  cret^ting  the 
trust,  he  should  and  it  is  his  duty  to  axrply  to  the  court 
for  instructions  and  when  he  is  in  real  doubt  he  may  always 
do  so  at  the  expense  of  the  trust  estate.   The  strict 
follrwing  of  the  directions  given  by  the  court  will  always 
relieve  the  trustee  of  personal  liability.   In  maJcing 
this  statement  I  refer  not  only  to  trustees  strictly 
speaking,  but  t®  quasi  trustees,  executors,  guardians,  etc. 
This  appeal  to  the  court  must  be  done  i:i  a  somewhat  formal 
manner.  The  application  must  be  by  petition  and  all  those 
persons  interested  in  the  esttte  must  be  notified,  then 
a  hearing  of  the  petition  v^ill  be  had  and  the  order  of 
the  c Gurt  will  follow.   In  the  absence  of  direction  in 
the  trust  instrument,  alw.  ys  in  the  case  of  an  administrator, 
you  must  look  to  the  statute  for  directions  and  if  in 
doubt  as  to  the  construtJtion  of  the  statute  you  are  always 
at  liberty  at  the  expense  of  the  trust  estate  to  go  int» 
court  for  directicnso 

nCTATION 

The  next  duty  of  the  trustee  is  to  carry  •ut 
the  provisions  of  the  trust  and  in  doing  this  the  first 
rule  to  be  observed  by  the  trustee  is  to  conform  in  his 
action  exactly  to  the  directions  of  the  trust  instrument. 
If  there  is  no  trust  instrument  and  the  trustee  acts  by 
virtuevirtue  «f  the  statute,  he  should  conform  exactly 
to  the  requirements  of  the  statute.  U'/henever  in  dount  as 
to  his  duty  either  under  the  statute  or  the  trust  instrument 
the  trustee  should  apply  to  the  court  for  instructions.  The 
order  of  the  court  will  alv/ays  protect  him  from  personal 
liability  . 

Pomeroy  "Iq.  Vol.  2,  1062-4 o 

In  carrying  out  the  trust  the  tructee  must  use 
•rdinary  care  and  prudence.  He  should  act  with  the  same 
care,  skill,  and  prudence  that  an  ordinary  man  displays 
in  the  transaction  os  his  own  business  and  property  under 
like  circumstances.  It  is  only  ordinary  care  and  diligence 
that  the  lav;  requires  cf  the  trustee.  If  the  trustee  fails 
to  exercise  this  orainary  care  and  diligence  and  loss 
results  he  will  be  held  personaly  liable  for  the  same.  He 
is  not  required  to  exercise  the  highest  degree  of  care,  f«r 
if  this  were  required  it  would  be  impossible  to  find  any 
one  to  accept  the  trust.  The  am.ount  of  care  and  diligence 
that  the  trustee  exercises  in  pari,icular  cases  must  be 
measured  by  the  business  ho  is  to  transact  and  the  duty  to 
be  accomplished.   He  would  have  to  exercise  more  care  over 
valuable  personal  property  t?iat  can  be  carried  away  than 
he  would  over  valuable  real  pr*perty. 


^^^5^^I'  EQUITY  JDRTSPRTIDEJTCE.    JR.  127. 


DICTATION 

In  carrying  out  the  trust  the  trustee  must  exercise 
ordinary  care  and  diligence.  The  highest  degree  of  care 
and  ailigence  is  not  exacted  for  the  reason  that  if  it 
were  it  vrould  be  impossible  to  obtain  men  for  the  trust 
position.  The  ordinary  care  and  diligence  of  the  ordinary 
business  man  is  all  the  law  exacts  of  the  trustee, 

82  N.Y.  499. 

144  111,  90. 

Pomeroy  1066-70, 
I  have  said  that  if  any  of  the  trust  property  con- 
sists of  debts,  that  it  is  the  duty  of  the  trustee  to 
cftllect  these  debts  within  a  reasonable  time,  if  he 
delays  ta  do  so  and  lesses  result,  he  will  be  personall;y' 
liable  therefor.  Ke  must  ftllow  up  the  collection  of 
the  debts  with  the  diligence  of  an  ordinary  prudent 
collector.  I  do  not  mean  to  say  that  all  demards  should 
be  collected  immediate  ]y  by  the  trustee,  he  must  exercise 
considerable  business  judgment  in  this.  It  may  be  for  the 
best  interests  ®f  the  estate  that  the  collection  of  a 
debt  be  not  pushed;  if  in  cases  of  this  kind  he  exercises 
ordinaiy  business  judgment,  even  though  losses  ensue  he 
will  notbe  personally  liable.  In  regard  to  the  care  of 
trust  property  the  trustee  must  exercise  ordinary  care 
and  diligence.  If  any  part  of  the  estate  consists  of  money 
at  the  time  it  came  into  the  hands  of  the  trustee  or  is 
subsequently  turned  into  money  by  him,  the  question  arises 
what  shall  he  do  with  that   money.  It  is  ordinary  care 
and  prudence  for  him  to  invest  that  money  at  the  earliest 
possible  moment.  But  it  generally  takes  some  time  before 
a  suitable  investment  can  be  found.  As  a  rule  it  is  not 
proper  for  him  to  keep  this  cash  in  his  own  possession 
Trtaiwi^  while  waiting  for  an  investment.  It  is  proper  for 
him  to  deposit  the  money  in  a  bank  in  good  standing  in 
the  neighborhood  or  town  where  he  resides.  He  must  ex- 
ercise ordinary  business  judgment  in  selecting  the  bank 
and  if  he  c.oes  so  and  the  bank  fails  ho  will  not  be  per- 
sonally liable.  If  he  selects  a  bank  which  people  generally 
regard  as  a  safe  and  proper  place  for  deposits,  he  will 
be  protected  if  he  deposits  the  money  in  the  right  way, 
and  thus  the  question  of  how  he  should  deposit  the  money 
arises. 


XXVII.        EqUITY  JURISPRUTENCrS.  JTR.  128. 

P   deposit  "by  a  trustee  of  trust  funds  should  never  be 
in  his  own  name;  it  snould  never  he  deposited  with  his 
ovm  funds,  that  is  a  mingling  of  funds  that  the  lav/  does 
not  allow  and  a  mint^ling  of  that  kind  makes  him  an  insiu^er 
of  the  trust  funds.  He  must  deposit  the  money  in  the 
bank  as  a  trust  fund.  It  should  be  made  in  the  name  of 
the  trust  estate,  not  in  the  name  of  the  trustee,  for 
example,  the  estate  of  AB,  deceased,  by  such  a  person  Adrax. 
If  the  deposit  is  made  in  the  name  of  the  trust  estate  and 
the  bank  is  selected  in  the  way  I  have  suggested  and  c  loss 
occurs,  the  trustee  v;ill  not  be  liable  therefor.  If  it 
is  made  in  his  own  name  he  v/ill  be  personally  liable. 

DICTATION 

In  the  protection  of  the  trust  property  ordinary 
care  and  diligence  must  be  used.  If  any  part  of  the  tiiist 
estate  is  money,  that  money  while  awaiting  investment 
should  be  deposited  in  a  bank  of  good  standing  in  the 
neighborhood  in  the  name  of  the  trust  estate.  Under  such 
circumstances  the  trustee  v/ill  not  be  personally  liable 
for  a  loss.  It  is  improper  for  the  trustee  to  make  deposit 
in  hi;3  own  name  or  to  mingle  the  trust  funds  v/ith  his  own 
on  deposit  and  if  he  does  s©  he  will  be  personally  liable 
for  loss. 

Perry  Trusts,  434. 
12  R.I.  544. 

The  trustee  may  leave  money  on  deposit  a  reasonable 
length  of  time  v/hile  av/aitin;;  investment,  ''hat  is  a  reason- 
able time  will  depend  upon  the  circumstances  of  each 
individual  case.  If  the  trustee  leaves  the  trust  funds  on 
deposit  a  reasonable  length  of  tim.e  awaiting  investment 
and  loss  ensues  he  will  not  be  personally  liable. 

7hiat  are  the  duties  of  trustees  as  to  investments? 
In  investing  trust  property,  the  trustee  must  exercise 
ordinary  -diligence  and  care.  The  duties  of  the  trustee 
in  investing  trust  funds  are  oT  somewhat  delicate  nature. 
He  is  to  exercifje  such  reasonable  prudence  in  the  invest- 
ment of  the  trusts  funds  that  the  estate  will  be  practically 
insured  against  loss  and  at  the  same  time  make  money  for 
the  estate  and  make  it  as  productive  as  possible.  If  he 
fails  to  exercise  reasonable  prudence  in  making  the  invest- 
ment end  loss  results  he  will  be  held  liable  for  the  loss. 

DICTATION 

It  is  the  duty  of  the  trustee  to  invest  the 
trust  funds  and  in  doing  this  he  must  have  in  mind  both 
the  safety  of  the  estate  anc  the  income  therefrom.  He 
must  exercise  ordinary  care  and  diligence  in  protecting 
the  estate  from  loss  and  he  must  also  produce  the  largest 
possible  income  therefrom,  that  is,  the  largest  income 
consistent  with  the  safety  of  the  estate. 

Pomeroy,  2,  1071-1072. 

Pry  V.  Admx.  of  Fry,  17  N.  Jc  Eq,,  71, 


XXVII.  EQUITY  JURISPRTU-'HITCE.  JR.  129. 

The  slection  of  securities  "becomes  a  matter  of  a 
good  deal  of  importance  to  the  trustt/e.  I  will  suggest 
to  you  some  rules  "by  which  the  trustee  must  "be  governed 
in  the  selection  of  securities.   If  the  trust  instrument 
gives  directions  as  to  v;hat  securities  should  "be    secured 
for  the  trust  investment,  those  direc^ions  must  be  followed. 
However,  if  your  judgment  indicates  to  you  that  other  in- 
vestments would  "be  "better  for  the  trust  estate  it  is  your 
duty  to  apply  to  the  court  for  directions;  do  not  take  the 
matter  in  your  own  hands  for  if  you  do  you  will  "become 
an  insurer  against  all  losseso   If  the  instr'jment  gives 
to  the  trustee  general  discretion  as  to  what  shall  be  the 
best  securities  for  the  investment  of  trust  funds,  that 
discretion  must  be  exercised  with  reasonable  pi-udence. 

DICTATION 

RUL"ES  AS  TO   INVESTlffiUT. 
(a)   First  f  ollo?^   any  directions  that  may  be   given 
in  the    trust    j.nstr-uraent ,    never   depart  from  it   unless  pro- 
tected by  an   order  of  the    court.    In  the   absence   of   direct- 
ions  in  the    instrument   follow  the   general  principles   of 
equity   in   regard  to    trust   investments. 

Por.ieroy  2,    1073. 

Perry  Trusts,    452. 
As   t»  the    equitable    rules  upon  the   subject    of   invest- 
ment,   I   challenga  your  attention  to  them  because  they  are 
matters   of  prime    importance   in  regard  to   trust  management. 

DICTATIO'T 

(1)  Mere  personal  security  is  not  regarded  by 
the  court  as  a  proper  investment  for  trust  funds  for  the 
reason  that  the  personal  responsibility  of  the  man  is  the 
only  thing  you  have  to  dpend  upon  and  if  misfortune  over- 
takes him,, there  is  nothing  back  of  his  prkmise  to  rely 
upon.  The  trustee  should  never  invest  in  them  if  he  desires 
to  keep  himself  free  from  personal  liability, 

Simmons  v.  01iver(Illus.  cases  516) 
(S4  Wis   653) 

Pomeroy  Eq.  2,  1074. 

0 Jan,  16  '03, 


XXVIII  EQUITY  JURISPP.UDTilNCE.    JR,  130. 

LECTURE  X.-Orill 

At  the  close  of  the  hour  I  was  engaged  in  expl,  in- 
ing  to  you  the  rules  in  regard  to  the  investment  of  trust 
funds.  I  think  I  suggested  that  the  investment  of  trust 
funds  in  mere  personal  security  is  not  countenanced  ty  the 
court  of  equity.  An  investment  in  a  man's  note  or  bond  un- 
secured v/ould  "be  an  investment  in  personal  security  and 
if  a  loss  should  occur  through  such  an  investment  of  trust 
funds  the  trustee  would  "be  personally  liable  therefor  .Courts 
of  equity  have  alv/ays  taken  this  j^roimd  because  personal 
security  has  net  the  stability  of  real  estate  orgovemment 
securities.  I  think  I  had  suggested  that  notwithstanding 
this  rule  it  may  tften  be  good  business  policy  to  advise 
a  client  to  invest  trust  funds  in  these  personal  securities, 
but  you  should  never  take  the  responsibility  of  so  doing 
without  explaining  to  him  that  if  there  is  a  loss  he  will 
be  personally  liable. 

DICTATION 

Investments  in  stocks,  bonds  or  other  securities 
of  privcte  "corporations  ere   not  favored  by  the  courts, 

Pomeroy  Eq.  2,  1074 

It  is  the  rule  at  the  present  time  in  England 
that  where  specific  directions  arc  given  in  the  trust  in- 
strument as  to  the  investment   of  trust  funds  they  should 
be  followed, but  where  no  directions  are  given  in  the  trust 
instrument,  that  the  investment  should  be  in  government 
securities  or  real  estate  securities.  Eormerly  the  invest- 
m.ent  of  trust  funds  in  real  estate  securities  was  not  sanct- 
ioned in  England,  because  they  were  not  of  the  stability 
that  trust  funds  should  have  in  the  way  of  investment.  The 
trustee  cannot  invest  in  municipal  bonds  or  bones  cf  foreign 
countries  or  in  corporate  bonds.   The  law  of  England  has 
exerted  an  influence  upon  the  law  in  this  country  in  this 
respect  although  the  laws  in  respect  to  investments  of  trust 
funds  is  not  so  stringent  as  in  Englajid.   A  trustee  can 
never  employ  trust  funds  in  trade  or  business  of  any  kind. 
In  this  country,  as  a  rule,  trustees  should  not,  except 
as  authorized,  invest  trust  funds  in  bonds  and  other  secur- 
ities of  prive.te  corporations.  In  a  few  cf  the  states  there 
is  an  exception  to  the  rule.  In  the  state  of  Mass.,  it  is 
proper,  as  decided  in  a  leading  case,  to  invest  trust  fu.:ds 
in  stocks  and  bonds  of  privrte  corporations.  One  case  goes 
so  far  as  to  hold  that  a  trustee  is  not  liable  although  he 
has  continued  to  keep  trust  funds  invested  in  stock  that 
is  constantly  declining. 


XXVIII.  EQUITY  JURISPRUDSl'CE.JR.  131. 


riCTATION 

In  "Rngland ,    the    lav/  as   to    investment    is  more 
strincent    than   in  /jnerica.    ?ut    in  this   country    it    is    im- 
proper  for   the    trustee   to  use   trust    funds    in  trade    or    in 
business    of   any  kind,    unless   he    is    authorized  hy  the 
trust    insT^rument    so   to   do,    nor  can  he    invest    in  the    secur- 
ities   of  private    corporations. 

king  V.  Talbot (lllus  cases,  503) 
(40  IT.Y.  76) 
A  more  liberal  doctrine  is  found  in  Mass, 
9  Pick,  446(111.  cases  518) 
20  Pick.  116 
130  Mass.  262 

In  some  of  the  states  there  are  statutes  author- 
izing the  investment  of  tmst  funds  in  bonds  of  the  cities 
in  which  the  trust  is  to  be  executed,   V-Tienever  ;/ou  have 
occasion  to  advise  a  trust-;e  as  to  the  investment  of  trust 
funds  always  turn  to  the  statute  and  make  yourself  familiar 
v/ith  the  statutory  provisions  upon  the  subject,  ■''here  the 
statute  is  not  extensive  enoufih  to  cover  thecase  in  hand 
the  general  principles  of  equity  in  regard  to  the  invest^ 
ment  of  trust  funds  will  govern.  In  the  absence  of  express 
instructions  in  the  instrument  and   in  the  absence  of 
any  special  statutory  provisions  upon  the  subject,   the 
following  investments  are  consiuered  proper  investments 
fcxr  trust  funds,  and  no  where  will  you  find  a  ste^tute 
that  says  they  are  not  goodi  they  are  good  whatever  the 
statutory  provisions  may  be:  (1)  The  investment  of  trust 
funds  upon  first  mortgages  upon  improved  land.  The  trustee 
invests  trust  funds  in  second  mortgiges  at  his  peril.  (2) 
As  a  rule  the  trustee  may  safely  invest  trust  funds  in 
government  securities  and  securities  of  the  state  within 
which  the  trust  is  bein^'  executed  and  securities  of  the 
United  States. 

DICTATION 

The  following  are  proper  investments: 
In  first  mortgages  on   real  estate  and  United  States  secur- 
ities . 

Ordinarily  United  P.tates  securities  would  be  re- 
garded as  proper  investment,  but  I  am  inclined  to  think 
that  the  trustee  v/ould  not  be  justified  in  putting  trust 
funds  into  United  States  securities  when  he  could  find  per- 
fectly good  real  estate  securities  drawing  a  larger  per 
cent,  on  the  investment,  because  it  is  the  duty  of  the 
trustee  to  get  as  large  a  return  as  possible  on  the  in- 
vestment and  at  the  same  time  protect  the  estate  against 
loss. 

Generally,  also  in  the  securities  of  the  state 
within  which  the  trust  is  to  be  executed. 


■  { ,  -?s 


y<\r  ~i,^' 


XrvTII.  EQUITY   JUinSPRTOI^NCE.JR.  / j> ^ 

Pom.  Hq.  2,  1074 

Perry,  Trusts,  458 

61  II. Y.  398 

55  Ala.  440 

S3   ::.Y.    613 
The   trustee,    however,    invests  trust   funds   in 
second  mortgages    or   other   subsequent   mortrjages   at   his 
peril, 

32   LT.J.    Eq.    524 

32  ?T.J.  Eq.  611 
And  as  a  rule  the  trustee  invests  in  foreign 
securities  as  ^'lis  r^eril. 

84  N.Y.  239 

I  have  said  that  in  conducting  the  trust  business 
-and.   especially  in  investing,  the  trust  funds,  the  trustee 
must  exercise  ordinary  care  anc'  ciligence  and  have  also 
suggested  that  he  does  not  exercise  ordinary  care  and  dilig- 
gence  v/hen  he  invests  trust  funds  in  specul.:tive  securities 
and  if  he  does  so  and  a  loss  occurs,  the  loss  falls  upon 
him.  It  may  occur  to  you   that  the  rule  is  inconsistent 
"because  ordinary  prudent  business  men  frequently  m.ake 
speculative  investments,  and  are  not  condemned  for  it,  then, 
why  is  it  not  proper  for  the  trustee  to  make  speculative 
investments.   Please  remember  that  this  rule  is  given  with 
this  qualification,  it  is  the  conduct  of  an  ordinary  prudent 
busine-ss  man  in  regard  to  the  handling  of  his  ovm  property 
that  he  desires  to  keep  practically  free  from  loss  and  at 
the  same  time  to  increase  it  to  the  greatest  possible  estent. 

Now  there  is  another  rule  of  law  that  the  trustee 
is  bound  by  in  making  use  of  tjftust  funds  and  it  is  this: The 
trustee  cannot  deal  with  trust  property  for  his  own  advant- 
age. In  all  matters  connected  with  the  trust,  the  trustee 
must  act  only  for  the  best  interests  of  the  beneficiary. 
The  cestui  que  trust   can  hole,  the  trustee  to  an  accounting 
of  all  profits  and  can  hold  him  liable  for  all  losses 
sustained  by  reason  of  liis  having  used  trust  funds  for  his 
own  interest.   It  is  improper  to  invest  trust  property  at 
a  large  rate  of  interest  and  account  for  ordint-r;'-  rate  of 
interest.  And  if  the  cestui  que  trust  discovers  this  and 
a  loss  occurs  on  account  of  his  taking  risks  he  will  be 
liable  anc  will  be  liable  if  he  only  takes  the  nisks  that 
an  ordinrry  business  man  v/ould  take,  if  the  investm.ent  was 
for  his  own  individual  gain.  In  that  case  he  is  h'^ild  as 
an  insurer  of  the  estate, 

tICT/.TION 

The   trustee    cannot    deal  with  trust   property  for 
his   own   advantage.   Ke   cannot    invest    it    in  his  private 
business;    never  can  properly  use    it    to  make   an    income   for 
himself.    If  he   does   this   and  profits   accrue,    the  beneficiary 


XXVIII  EQUITY  JURI SPRIT 'r^LTCE.  JR.  133 

is    entitltd  to    it;    if   a  loss   occurs  the    trustee    is    lis.ble 
therefor, 

Pomeroy,    2,    1075 
86  T,To.    475(Illus.    cases,    5?39) 
It    is    improper  for   the    trustee   to   confuse   trust 
property  with  his    •wn .    If   trust   property  consists    nf  money 
it    is    improper  for    the    trustee   to  mingle   that  money  with 
his    own  whether   it    is    in   a  privt-te    safe    or   in  the   hsJik.    If 
a   loss    occurs   after  £.   deposit    of   that  kind  the   trustee 
would  he   personally   liable    therefor   even  though  the   "bank 
at    the    time    the    deposit   v/as  made   was   regarded  generally 
in  the    neighberhood  as   a   sound   and   safe    institution.   The 
moment    the    trustee   departs   from  the   path   of  his   duty,    he 
becomes   an    insurer  and    is    liable   .t    all  events.    If  he   gets 
profits   for  mingling   trust    funds   with  his    own,    the   bene- 
ficiary  is   entitled  tn    those   fcm  profits   and   if   it    cannot 
be   ascertained  v/hat   the  profics   were,    he   v/ill  be   allowed 
interest , 

DICTATION 

Trustee  cannot  properly  confuse  trust  funds  v.'ith 
his  own.  He  cannot  for  example  ("eposit  them  in  a  bank  to- 
gether with  his   ov.-n  funds;  if  a  less  follows  the  mingling 
of  the  trust  funds  with  his  private  funds,  the  trustee  will 
be  personally  liable  therefor,  even  though  he  has  exercised 
good  business  judgment.  The  moment  he  departs  from  his 
line  of  duty  as  marked  out  by  equity  •r   the  statutes  on 
the  subject,  or  the  trust  instrument,  he  bee  ones  in  effect 
an  insurer  of  the  property.  If  profits  have  accrued  from 
this  cause  the  beneficiary  is  entitled  to  them.  If  the 
prQl'its  cannot  be  ascertained  the  beneficiary  is  entitled 
to  interest  and  in  some  cases  to  compound  interest. 

Pom.  2,  1075  and  note  2. 

Perry,  Trusts,  447 

It  is  always  the  duty  of  the  trustee  to  keep 
himself  in  such  a  position  t'lat  there  will  be  no  temptation 
fot   him  to  work  for  his  individual  interests.  He  cannot, 
for  example  purchase  his  own  property  for  the  trust  estate 
nor  can  he  sell  trust  property  to  himself. 

1 

18  Beav.  75( Illus .■  cases ,  522) 
If,  however,  the  beneficiary  has  been  in- 
formed of  the  transaction  of  this  kind  and  has  accepted 
the  results  of  it,  he  v/ill  not   be  allowed  to  repudiate 
it  without  returning  to  the  trustee  what  he  has  received. 

84  N.Y.  190 
17  N.J.  Eq.  554. 


Xmil.  EQUITY  JUP.ISPRUDENCE.JR.  134 

DICTATION 

Trustee  cannot  properly  deny  the  title  of  the 
beneficiary;  cannot  assert  title  or  interest  to  "be  in  him- 
self, although  he  has  received  it  before  accepting  the 
trust.  He  can  only  set  up  this  adverse  claim  after  the 
termination  of  the  trust  relation.  If  he  knows  that  he 
has  an  interest  that  will  be  desirable  for  him  to  assert 
he  should  not  accept  the  trust. 

45  Ga.  110 

17  iJ.J.  71(1.    1&5 

Perry  on  Trusts,  433. 

The  trustee  is  not  to  seel  trust  property  te 
himself.   Any  transaction  •t   this  kind  entered  into  behind 
the  back  of  the  beneficiary  is  voidable  and  may  be  set 
aside,  unless  he  being  capable   of  acting:  in  his  ovm  behalf, 
has  assigned  with  full  knowled^je  of  all  the  facts,  'Fre- 
quently  cases  FTise  v/here  the  executor  get  s  a  third  party 
to  purchase  trust  property  at  a  sale  for  the  benefit  of 
the  executor  and  afterwards  a  deed  passes  from  the  third 
pa,rty  to  the  executor.  Transactions   of  that  kind  are  im- 
proper. It  is  constructively  fradulent  and  may  be  set  rside 
unless  it  can  be  shown  that  all  the  pc-rties  received  due 
consideration,  and  that  the  trustee  accepted  the  results 
of  the  transaction  knowing  all  the  facts  and  being  Cc.pable 
of  acting  for  himself.   It  is  improper  to  purchase  trust 
rpoperty  from  the  beneficiary  and  the  Sc-le  may  be  set 
aside  in  many  cases.  Take  the  case  of  attorney  and  client; 
it  is  improper  for  the  attorney  to  take  conveyance  of  pro- 
perty from  his  client.  If  the  client  deeds  to  the  attorney 
real  property  while  the  relation  of  attorney  and  client 
exists,  a  transaction  of  that  kind  is  presumably  fraud- 
ulent. The  burden  is  throvi-n  upon  the  attorney  to  show  that 
the  transaction  was  free  and  above  board  and  that  he  paid 
a  full  consideration  for  the  property  or  received  it  as 
compensation  for  his  services. 

0 Jan  22  '03, 


XXIX  EQUITY   JTJRIST'RU.rEITGT^.JR.  135 

LT^CTURR  XXIX 

..-0  — 

I   was   speaking  at   the    gIopg    «.f    the  hoxir  V7ith   respect 
to   the   trustee   purchasing   trust   property  behind  the '<tack 
of    che   heneficiary,    It    is  not   proper  to  purchase   trust 
property  behind  the  hack   of  the   cestui   que   trust   and  with- 
out  his  jcncvrledge,    even  though  the   trujotee   does   it   through 
the    i.'istrurent  ality   of   a   public    sale^   Very  freq^uently 
trustees   think  that    jt    is   proper   to   purchase   tru-st    pro- 
perty by  getting-   a  third  party  to  purchase   the  property  at 
a  public   sale    and   t?ien  to   reconvey  the   trust   property  to 
thein.   Transactions    of   that  kind  are   constructively  fraud- 
ulent  and   a   court    of   equity  will  set   the    sale   aside   at 
the    suit    of  the   beneficiary,    unless  he   has   acquiesced   in 
the   transaction  by   receiving   the   profits  thereof,    knoT.-ing 
all  the   f f ct s   connected  therewith,    and  being   legally   capable 
of  acruiescing   in  a  transaction   of   that   kind.   But    equity 
goes   even  further   than   this,    it    is   not   proper  for   the 
trustee   to      urchase   property  from  the    cestui   que   tnxst.    Tran- 
sactions   of  that   kind  are  presumably  fraudulent    and   they 
can  be   set   a.side   at   the    suit    of  the   beneficiary.   The   trans- 
action throws   the  burcen  upon  the   trustee  to   show  that 
everything   connected   therewith  was   carried   on   ii  a  ma.nner 
ab«)ve   criticism  or  reproach.    It   thro- 's   the  burden  ur.on  him 
to   show  that   full  consideration  was  paid  for   the  property. 
These   remarks   apply   to   trustees   proper,    and  also   apply  to 
various   relations  that   are   not   techi    ically  the   relation 
of   trustee   and  cestui   que   trust;    they  apply  to  the    r^^lation 
of  attorney  and  client,    guardian   t.nc    ward,    executors,    ad- 
ministratorr ,    partners,    principal   and  agent,    eLc. 

DICT/.TIOi: 

It  is  improper  for  the  trustee  to  purchase  trust  pro- 
perty behind  the  back  of  the  benefici;  ry   and  such  a  pur- 
chase is  presizmptively  invalid,  even  though  it  be  made  at 
a  public  sale  «f'  the  trust  property  and  thi-ou^h  the  inter- 
vention of  a  third  party.  Fven  a  purchase  directly  from 
the  beneficiary  by  the  trustee  is  lookea  upon  ^/ith  marked 
disfavor  by  courts  of  equity,  and  will  be  set  aside  unless 
the  trustee  can  Overcome  the  presumption  thi.t  arises  against 
the  transaction  by  shoT/ing  that  it  was  ii  every  respect  a 
proper  transacticno 

175  ^a.    St.; 92(Illus.    cases   527) 

Ppmeroy   Ti,    958,C59-960 

2:  Johnson  Chan,    252 

27   N,.T„   Equity   162 

:Berry   on  Trust    200. 


XXX  EQUITY  JURISPRUDENCE.  JR.  L36 


DICTATION 

In  orc^er  t^pt   the  trustee  may  shield  himself  from 
irregular  conduct  behind  the  claim  of  acquiesence  on  the 
part  of  the  destui  que  trust,  the  acquiesence  must  "be 
characterised  as  follows: — 

(1)  There  must  he  legal  capacity  on  the  part  of  the 
■beneficiary, 

^2)  Must  not  he  the  result  of  undue  influence  or 
restraint , 

(3)  Fith  full  knowledge  hy  the  beneficiary  of  the 
v/hole  transaction  or  means  of  knov7ledge  at  e,ny  rate. 

(4)  Full  knov;ledge  by  the  beneficiary  of  his  legal 
right  s , 

^omeroy  2,  964-5,1063 
"t^erry  on  Trusts  467-849. 

Another  duty  of  the  trustee  is  to  iceep  distinct 
and  accurate  account  of  all  his  doings.  He  must  not  mingle 
trust  accounts  with  his  ovvnt  The  accounts  of  the  trustee 
should  always  be  open  to  the  inspection  of  the  beneiiciary 
at  proper  times  and  under  proper  conditions.  The  benefic- 
iary is  always  entitled  to  see  what  the  beneficiary  is 
doing  and  if  the  trustee  refuses  to  allow  him  to  inspect 
the  accounts  he  may  get  an  order  of  the  court  compelling 
him  to  do  so.  There  should  be  a  separate  account  of  all 
trust  expenses i  if  the  trustee  mixes  up  trust  expenses 
with  other  accounts,  it  is  likely  to  lead  to  a  great  deal 
of  confusion  and  trouble  for  the   presumption  is  against 
the  trustee  when  it  appears  that  he  has  not  kept  any  dis- 
tinct account  of  expenses, 

DICTATION 

Trustee  should  always  keep  a  full  and  accurate 
account  of  all  his  doings.  It  is  better  that  he  should 
keep  an  account  of  his  expenses  separate  ancl  distinct  from 
his  other  accoonts.  Under  no  circumstances  should  his 
accounts  as  trustee  be  mirgled  with  his  personal  accounts. 
If  this  is  done  a  presumpt'on  arises  against  the  trustee 
that  is  difficult  t«  overcome .  j?\irther  the  trust  account 
must  be  open  to  the  inspection  of  the  beneficiary,  if  in- 
spection is  refused,  the  court  can  compel  it. 

■Pomeroy  2,  1063 

36  Me,  577 

54  Pa  60 

Upon  the  termination  of  the  trust,  accounts  must 
be  settled  ani  the  property  turned  over  to  the  beneficii.ry 
and  if  the  trustee  neglects  to  do  this  he  may  be  compelled 
to  do  it.  Settlement  may  be  immediately  with  the  beneficiary 
without  the  intervention  of  the  court,  if  the  beneficiary 
is  not  laboring  under  a  disability.  If  he  is  laboring  under 


XXX.  EQUITY  JURISPRIIDEIICPI.JR.  137 

a  disability,    settlop-cnt    should   alv/ays  iDe  made   throu£;h 
the    intervention   of  the  court. 

26   7ich  435 

Perry   on  Trusts,    chep.,    32 

■^omeroy  2,    106  5 

In  0;  se  ^f  a  "broach  of  the  trust,  th3  beneficiary 
has  the  election  either  to  follow  the  trust  property  itself 
or  proceed  personally  against  the  trustee.  Of  course  if 
the  trustee  is  insolvent  and  the  trust  property  is  capable 
of  identification,  the  beneficiary  would  pursue  the  property 
rather  than  proceed  personally  against  the  trustee.   Of 
co\i.-se  it  may  be,  and  there  usually  is,  a  thii  d  opportunity, 
namely,  the  opportunity  that  is  given  the  beneficiary  to 
proceed  against  the  sureties  on  the  bond  of  the  trustee 
for  the  proper  performance  of  his  duties.  Almost  al"  ays 
the  trustee  is  compelled  to  give  a  bond  for  the  performance 
of  his  duty.  Quasi  public  trustees  are  required  by  law  to 
give  bond.  It  has  been  held  thcit  administrators  must  give 
bond  even  though  it  is  waived  in  the  will, 

DICTATION 

In  3aFe  of  breach  of  the  trust  the  beneficiary 
may  either  follow  the  trust  property  or  proceeds  against 
the  trustee  personally  or  proceed  against  the  trustee  and 
the  sureties  on  the  bond  that  has  been  given  t«  secure  the 
proper  performance  of  his  duties. 

Perry  on  Trusts,  843 

Pomeroy,  2,  1080 

31  Calif.  17 

40  :^iss,  599 

Now  where  an  action  is  brou'^ht  against  the  trustee 
personally  he  cannot  as  a  rule  shiled  himself  behind  the 
Statute  of  Limitations.  As   a  rule  the  Statute  of  limitat- 
ions does  not  apply  to  trustees  for  the  reason  that  the 
trustee  is  in  a  position  to  conceal  the  right  of  action 
from  the  beneficiary.  As  a  rule  in  the  statutes  of  the 
different  states  you  will  find  special  exceptions  m  ^^egard 
to  trustees,  but  in  the  absence  of  soecid  exceptions,  these 
statutes  ar4  net  held  to  apply  to  trustees.  There  are  some 
exceptions  to  the  ru]e,  however-,  if  it  appears  that  there 
is  a  fund  in  the  hands  of  the  t rust t.e  which  by  the  terms 
of  the  trurt,  the  beneficiary  is  entitled  to,  anaif  a  pears 
that  it  is  a  sum  for  v;hich  the  beneficiary  can  urmg  sui. 
in  a  court  of  law  and  get  judgm'^nt  for  the  amoun.,  then 
the  Statute  of  Limitations  will  runj  for  exajnple,  if  the 
truoteo  has  callected  a  certain  amount  ol  money  which  under 
the  provisions  of  the  trust,  it  is  his  c.uty  to  collect  c.na 
pay  over  to  the  beneficiary,  the  beneiiciary  knowing  he 
h^s  made  the  collection,  and  has  the  money  in  nis  hands, 
then  the  beneficiary  may  :.o  into  a  court  of  If^^J^^r  .^^^^„ 
the  trustee  for  the  amount.  As  a  rule  all  matters  bet.veen 


■^     tyti^.ijr 


XXX  EQUITY   JimiSPEITOENCE.JR.  138 

trustee   and  cestui   que   trust  must   be   settled   in  r    court    of 
equity,    tut  this   is   one   of    the   exceptions,   "''"-^erever   this 
state   of   facts   exists  and  the  "beneficiary   instead   of  "bring- 
ing suit,    allows   the   thine   to  drift   along,    the   trustee  may 
plead  the    Statute   of  Limitations, 
Perry   on  Trusts,    863 

A  court    of  equity  not    only  has   authority  to  a"    oint 
a  trustee,    but    also  has   the    authority  to   remove   a  trustee 
and   is   the    only  court   that   has   authority  to   do   so.   This   is 
a  matter   in  which  the   court    of   equity  v;ill  not   act    except- 
inc^  upon  the    clearest   possi"ble    evidence.   The    simple   fact 
that   the   trustee    is  not    doin^;  what    the   beneficiary  thinks 
he    ou^ht   to   do  will  not   be    a  grovuid   for   removinc     him.    It 
is   a  rather  serious   thlnj,  to    remove    a  trustee,    for  he    is 
sleeted  for  his  personal   integrity   and  personal  abilitji 
by  the  person   creatin,_    the    trust,    and  for    the   court   to   step 
in  and  remove  him  without   full  and  complete   evidence   of 
his   incapacity  or   irregularity  on  his  pe.rt  would  be   a 
serious   thing  to  do.   Insolvency   of  the   trustee   after  he 
has  undertaken   the    trustee,    so  that   he   is  not   personally 
responsible  would  be    a  reason  for  removini^  him.    Or   if  the 
trustee  has   removed  from  the    jurisdiction   of  the   court   th;  at 
wo\ild  be    a  ground  for   removing  him  and  placing  another  in 
his  place.   The   court  has  not    only  the  power   to  remove,    but 
also   the  power  to  appoint   another  trustee,    and  pending  the 
appointment,    the    title   to   trust  property  vests   in  the   court. 

DICTATION 

Equity  has  power  and  authority  not  only  to  appoint 
but  also  to  remove  a  trustee  upon  the  proper  evidence  of 
his  incapacity  or  Irregularity  being  shown. 

Perry  on  Trusts  275-9,817-6 

Pomei-oy  2,  1087 

First  Chan  Div, ,  43(Illus  cases,  546) 

Before  leaving  this  subject  I  must  say  a  v/ord 
or  two  as  to  the  compensation  that  trustees  are  eititled 
to.  As  I  have  already  suggested  the  trustee  cannot  make 
any  personal  profits  out  of  the  trust  relationship  over 
and  above  the  compensation  which  the  law  allows  him,  and  in 
some  jurisdictions  he  must  be  satisfied  with  the  honor 
without  cny  compensation,  because  under  the  old  English  rule 
and  under  the  rule  that  prevails  quite  generally  in  this 
country,  the  trustee  is  entitled  to  no  compensation  and  is 
entitled  only  to  be  reimbursed  for  his  expenses  he  has  paid 
for  the  trust  estate.  That  is  the  old  '"nglish  rule,  unless 
the  trust  instrument  provides  for  compensation.  But  in 
most  of  the  states  at  the  present  time  the  trustee  is  en- 
titled to  something  more  than  the  empty  honor  of  holding 
the  trust.   Eirst,  if  compensation  is  provided  for  in  the 
instrument,  that  will  govern,  unless  extraordiaary  duties 
are  imposed  upon  the  trustee  that  were  not  contemplated 
by  the  party  at  the  time  he  made  the  trust  instrument,  then 
additional  compensation  will  be  given  by  the  court. 


XXX  EQUITY  TURISPRUDENCfi.jrv.         139. 


DICTATION 

In  ';omG  of  the  states  you  will  find  statutes  that 
provide  expressly  for  compensation  of  the  tmsteeo  In 
most  of  the  states  you  will  not  find  any  such  statute, "but 
yon  will  find  in  all  the  states  statutes  regulating  the 
compensation  of  administrators  and  executors,  and  it  has 
been  very  generally  held  that  statutes  of  that  kind  altho 
they  do  not  expressly  refer  to  trustees  pure  and  simple, 
will  apply  to  the  ordinary  trustee,  '."e  have  a  holding  of 
that  kind  in  the  state  of  Mich,  111  and  I.'.Y, 

Trustees  in  this  counti-y  are  now  entitled  to 
compensation;  amount  governed  "by  provisions  in  the  trast 
■'.nstrviment  or  "by  statute.  If  extraordinary  services  are 
rendered,  this  amount  (the  amount  fixed  "by  statute  or  "by 
the  instrument)  may  "be  increased  by  the  court o 

Perry,  916-919 

Pomeroyj  2,  1084-5o 
Prepare  these  two  cases  carefully: — 

132  111,  139;24  NoE.  524(Illus  cases  534) 

55  N.Yo  2639I11US.  cases  535) 


oOo • 

Jan,  23rd., 1903, 


I  : 


--  :i 


.»V  cumulations,  '^tc-lute  a,-ainf:t,  7;.00 

Aijierican  '"tt\:tes,  73 
Assembly  of  the  v/ise,  3 

Attitude  of  courts  in  regard  to  trust  arisin;^  from 

use  of  precatory  word,  84 

/jiglo  Saxon  Period,  3 

Antagonism  between  trustee  and  "bonef iciary,  105 
Authority  of  Chancellor,                          11-   IS 

Bargain  and  Sale,  66 

E  ib  1  i  0  ghr  aph^^ ,  1 

Cestui  que  trust,  87 

Chattels  real,  '  74 

Charles  II  70 

Charitable  Uses  or  Trusts,  85-   98 

Characteristics  of  Trust  legislation,  97 

Circuit  Court  Commissioner,  20 

Court  of  Tvxchequer,  5 

Corporations,  charities  effected  thereby,  105 

Constructive  Trusts,  106 

Classes  of,  110-11:^-113-114-115-   115 

Commercial  paper  dei^osited  with  bank  for  collection,    118 
CoTenant  to  stand  seized,  67 

Compens?.tory  damages,  34 

Cancellation,  ^^8 

Common  Law  Judges,  9 

Complaint,  bill  of,  11 

Creditors,  to  sell  land  for  benefit  of,  97  • 

ry  Pres  Uoctrine,  98 

Kinds  of,  Judicial  and  preroz-ative,  98  99 

Decentralization,  3 

Depositary  of  legal  title,  passive  trustee,  86 

Defects  of  Common  Lav;  Courts,  c-   9 

Decree  in  Equity,  54 

Definition  of  Maxim,  23 

Distinctions  between  implied  and  express  trusts,  105 
Differences  betv/een  law  and  equity  courts  as  they  exist 

to-day,  *^0 

Donee, of  pov.-er,  90 

Duties  of  donee,  ^^ 

Edward  III  J 

Effect  of  Statute  of  Uses,  65 

Elizabeth,  }^} 

English  rule  as  to  investment  of  trust  funds,  131 
English  Statute,  '^'^ 


::  q  u  I  T  Y    J  Tj  r.  I  n  p  r  u  p  ^  ::  c  e.jr. 

pa'":e;- 

;^nglish  Syr.tcri  cf  Equity  to-day,  17 
Pquity   acts   spscifically  and  not   "by  way   of   compensation   56 

Equity  acts   in  personam, and  not    in   rem,  54 

Equity   imputes   and   intent   to   fulfill   and   obligation  53 

Equity    cf  Recemption,  52 

Equity   regards   that   as   done   ■,T}aich  ought   to  he   done,  49 

■''.'quity   looks   to    the    intent    rather  than   to   tho   forni,  50 

Equality  is  equity,  46 
Equity   aids   the   vi.";ilant,    and  not   these  who   slumber   on 

their   ri[:;hts,  44 

Equity  follows  the  law,  35 
Equity  will  not   by   reason   cf  a  merely  techinical 

defect   permit   a  wron(3   to  be   v/ithout   e. 

remedy,  30 

Exception,  31 

Equitable    remedies,  25 

Equitable    rights,  25 

Equitable    title,  24 

Equity , system   in  United   States,  19 

Essentials    of  writin^^  creating  a   trust,  71 

Express   passive   trusts,    prohibited  iDy   statute  86 

Express   passive   trusts,  85 

Tbqjress   active    trusts,  85 

Express  trusts,  68 
Ex  delicto,    trusts,                                                                                 1^/ 


■)0 


Eraud,  basis  of  constructive  trust,  111 

Ereehold  intei'est,  64 

General  Outline  of  Equity,  23 

He  who  seeks  equity  must  do  equity,  40 
He  who  comes  into  equity,  must  come  v/ith  clean 

hands,  4:2 

Henry  VIII  16 

Implied  trus"".  s,                 ^  69 

Implication  of  law,  74 

Intention  of  parties,  59 

Investment  of  trust  property,  128 

Intention  basis  of  resulting  trust,  110 

Interest,  cannot  be  assigned,  98 

Injionction,  '-^ 
Kinds  cf, 

(A)  ITandatory,  26 

(b)  Prohinitory,  iG 

Judicature  Act,  1873,  6 


3  EQUITY      J  U  R   I    S  P  R  U  D  r,   ::    C   ?.,    JR. 

Judicature   Act,  17 

Jurisdiction   of  Equity,  12 

Xinr's  Court ,  5 

Laches,  34 

Legislation   in   regard  to   trusts,  92 

Lease   and  Release,  67 

Local   courts,  3 

Maxims   of  Equity,  23 

"'axims   of  T^quity  30 

Master   in  Chancery,  20 

Maine   Statute,  73 

Manifested  and  proved,  71 
Mere  personal    security  not   propert security  for   in- 

Vbstinent    of  trust   funds,  129 

?Uch  Statute,  91-92 

Mortgage,    m   equity,  52 

Nature    of  Equity,  22 

Kex  exeat ,  29 

Hew  York     Statute   in  re;:ard  to  CharitalDle   ases,  104 

No   jury    in  Equity,  20 

Original  Frits,  '                                             9 

Parol   evidence,  74 

Parol,    trust   created  by,  70 

Passive   Uses,  65 

Performance    of   duties,  14 

Perpetuity,    Statute   against,  100 

Persona],  duty   of  trustee    ,  125 

Personalty,    Statute   of  Frauds   does  not   apy.ly,  74 

Powers,    duties  arx.    lialoillties    of  trustees,  123 

Private   trusts,  85 

Powers   coupled  with  a  trust,  90 

Naked  powers,  88 

Powers   in   trust ,  86 

Purposes,    for  which  trusts  may  "be   created,  87 

Puhlic   Trusts,  65 

Precatory  v/ords,    use   of,  84 

Proper   investment      of  trust   funds,  131 

Procedure    in   equity    courts,  9 

Precedents,  8 


EQUITY  J  U  R  I  S  P  R  U  I)  E  IT  C  E.JR. 


Real  property, 

Receiver  impressed  with  trust, 

Receivership, 

Recission, 

Reformation, 
Rents  and  profits, 
Recpondent , 
Resulting  Trusts, 
Classes 
Roman  Law,  source 
Rules  ill   re.J^ard  to 


of, 

of   equity, 
tl?e    investment 


Source  of  Equity, 
Statute  of  Uses, 

vTien  applies. 
Statute    of  Charitable   Uses. 

Construction   of, 
Superior  Court , 
Statute    of  Erauds, 


of  trust   funds, 


15-63 


pa^es 

74 

118 

29 

28 

24 

97 

11 

106 

107,110 

7 

129 


7 

•    96 

64 

101 

103 

6 

70 


JTestimony,   how  taken   in   a  court    of  eauity, 
'Trust,    void  under   statute, 

Tracing   trust    funds, 

Trust,    kinds   of, 


20 

97 

120 

59 

Trust    inferred  by   construction   of  the    instrument,  £1 

Circumstances  under  which  they  may  arise, 82, 83   84 
Trust   rolacions   not   classified,  122 

Title    of  beneficiary,    trustee  cannot   deny,  134 


Uses  and  purposes   deemed  to  be   charitable, 

(1)  Eor  relief   of  poor  and  needy, 

(2)  Educational  purposes, 

(3)  Public  purposes, 

(4)  Religous   purposes, 

Vendor's    lien, 
Voluntary  trusts, 

77riting   sufficient   to  create   a  trust, 

T'.'here   there   are   equal  rights   or   equities    the   first    in 

order   of   time   must   prevail, 
Where   there    is   equal  equties   the   law  must   prevail, 


104 
104 
104 
104 
104 

25 
76 


81 

57 
40 


oOo 


LECTURES 
0  N 

:iQUI_TY    2UR_isprud2n;ge,  SR 

3  Y 

D  E  A  IT     HARRY     B.      H  U  T   C  H   I  IT   S 


Reportei  hy  C.   G.   IteCollon 


U  IT   I   V  E   R  S    I  T   Y     0  ¥      li  I   C   F   I   G  A  IT 
La?/  Class    of   1904. 


Edwards  Bros . Publishers , 

Ann  Arbor,   !.iich. 
1903-1904. 


•  • .     •       u     1      i      J.         .■       .  J.      ,.      ••       .     i;  .  .    ;■     C    J'j  ,        .-A>.,  1, 

oOo 

This    ser;:e£tv'}r  v;e  v.dll  have    to   cio    vith  that  portion  of 
l:quity  Jur i sprue' en  ce  Icnov.Ti   as  ^^qii.ita'ole  Kights   or  urounds   for  Jvelief 
in  'Iquity   and   later  on  v/ith  ",quit?.ble   I^ernedies   consistinr:  of  the 
various  remedies   th.at    a  court    of    equity  uses   to   enforce    its  prin- 
ciples.     The    subject    that   I  v/ish  to    take  up    first    is  this   subject 
of  ?^q\ii table    rights   or  grounds   of  relief   in  ''qu.ity.      /'n  equitable 
right    is    c,  right   to    some   one   of  the   equitable    remedies.      This   ri;Jit 
ms.y  be  exercised  v/ith  regard  to   a  pro-erty   interest   or  v;ith   re,:ard 
to   the  r^ersontil    status;    it  :nay  be    exercised  v.'ith   regard  to   cojitract 
rights.      In  discussing  tliis    subject   of   equitable    rights    or  grounds 
of  reli'':f   in   equity,    I   shall   not    discuss   all',   the    equita":^le   rights 
that    you   shall  meet    •  ith  in  pratice,    but   I    s'^all   call  you  attention 
to   the  principal  ones   and  the   first   one    t'at   I  \/ish  to  dir.ctiss   is 
knov,Ti  as  AC'liyj^,  T,        It   is   one    of   tb.e   oldest   of  "Equity   Jurisdiction 
heads.      If  yor.   ■'.,111    lool:  into   the    old  books  you  v/ill   find,  that    at 
the    xery  beginmng   of    the    enforcement    of    equitable    rights,    relief 
T;as  granted   in  a  great   nu-iber  of  car-es    on  the    groun^^   of   accident  o 
Indeed,    you   -111   find  that    the   relief  granted   in    equity  on   the    ground 
of   accident  vias  much  broe.der  tlan  it    is    to-d_ay.        To-day  the   juris- 
diction  of    the   la'vTcourts   over  matters   of  accident   has  been  very  much 
extended,    and  perhaps   it   is    the    exception   vhen  v.-e  a:-;  ly   to   the   equity 
courts    for  relief   on   tb.e  grounf    of    accident,  '  otv-ithGtanding 

this   exstenrion   of   the   jurisdiction   of    the   lav;  courts,    the   eqv.ity 
jurisdiction  remains   in  all   of  t-ie   original    cases   and   is    exercised 
frequently. 

It    is  difficult    to   define   the   term    'accident'    in     a  v/ay 
to    include   all   the    essential   elements   and   to  exclude  all  the  eler.-.ents 
that   are   not    esr-ential.        Justice    Story  defines   accident    in   such  a 
v;ay  as  to   convey   its  popular  and  not    its    techinical  meaning.    The 
follov/ing   definition  \.ill  be   found   to  be    reasonably  accuz-  to   c/aC 
comprehensive:      Accident    is  an  unforseen  and   injurious   occurence 
t'la.t    is   ■  external  to    tlie  party   effected  ^oy   it   and  is   not   the   re- 

sult   of  the  negligence    or  misconduct    of  that  party,    oy  v;hich  rights 
are    lost    or  liabilities   incurred  t'^at   ^vould  be  c  aitrary    to    equity 
&.nd  good    conscience   not    to   remedy.  That    is    substantially  the 

definition  given  by  Pomeroy,        An  accident    is    something   that    is 
thrust   upon  a  party  v'ithout   his    ovn  volition   or  negligence    in  any 
particular,      A^p^rty  ma;>''   through  his   ovm   carelessness    suffer       a   los^ 
as   for   instance  he  m.ay  lose   a  promissory  note   and  his  noighbor  may 
say  that    is   a  ver;.'  unfortunate   accident,    bi;.t   it    is  not   an      accident 
as   equity   uses   the    term.        It   must  be  something  beyond  the  pov;er 
of  the  party  affected.      It  may  be  brought   about   through   some   natural 
causes   or  thrcnagh  seme  of   the   convulsions   of  nature   or   through  the 
shortc  craings   of    some   one  by  v;hom  the  party  vrho   suffers   is    surrounded. 


I.  E   C.  U  I    T  Y      J  U  R  I    C  P   P.  U   D  E  S'  C   E,    SR.  2 

In   the  case    oi"  ''opper  v.   Tyer,    59  Vt,    477,    the   court   said: 
"T"  e   tern    'accident'    in   its   legal   signification,    is  difficxilt   to 
define.      Judce    Story  defines   it   as   emtir£'.c  in^,    'not  nerel-a  inevit- 
able  casualty,    or  the   act    of  "^-roTidence,    or  what    is   technically 
called  vis  major,    or  irresistible   force,    but   such  unforseen  events, 
misfortuner,    losres,    acts   or  omissions,    as   are  not   the   result   of 
any  neglic:ence   or  nisconduct    in  the  j^arty'    affected  thereby,      1 
Story,    ^''q,   Jur.   par,    78.     Mr,   Pomeroy  justly    criticizes   this   def- 
inition as    including  what   are   not    accidents   at    all,   but   mistakes, 
r:nd    az   omitting  the    very    central    element   of  the   equitable    conce  pt- 
ion,    an.r.d   defines    it    t-Tus:    "'Accident'    is  an  unforseen  and  unexpect- 
ed event,    occurin.z  external    to   the  ptrty  affected  by  it,    and   of   v/hich 
his   o\m    <.y,ency   is  not   tVie  proximate    cause,   Wiinreby,    ccntrary  to  his 
ovm  intention  and    '.Ish,   he   loses   some    legal  right,    and  another  per- 
sons  acquires  a   correspond  in;;   lejal   right,    v/]iich  it    './ould  be  a  viol- 
ation of  good    oon'-cience   for    the   latter  person,    under  the   circum- 
stances,   to    retain."      2  Pom.   Eq.    Jur.    623.      And   the   chief  point    of 
the   thing   is   that,    because   of   the   unforseen  and  unexpected  character 
of   the   occurrence  by  vrhich  the   legal   relation  of    the  parties  has 
been  unintentionally  chaiiged,    tlie  party  injuriously    affected   thereby 
is,    in  good    conscience,    entitled  to    relief  t]iat    rdll    restore   those 
-relations   to   their   originr.  1    character,    and  place  him  in  his   former 
position, " 

LI CT ATI OH 

E r ui ?a:^-le  ii :;:its  or  crouitds  job  reijS-^  i::  equity , 

'Accident'    is   one   of    tlie    oldest   heads   of   equity  juris- 
diction.     The    earlier  jurisdiction   in   case    of  accident  was  much 
broader   in  fact   than  t  .e  jurisdiction   i.t    tiB  present    time.      In  theory 
the   jurisdiction  h^.s  not   chimged  essentially. 

r;E:'I"_ITKllIl       Accident    is  an  unforseen  and   injurious 
occurrence   thial    is    external  to  the  p^rty  affected  by   it   and   is   not 
the   result   of   the  negligence   or  misconduct    of    tliat  party,   by  v;hich 
rights  are  lost   or   liabilities   incurred  t?iat   would  be    contrary  to 
equity  not    to   rened;/. 

Pomerov  J^q.    Jur,   Vol,    2,    par. 
"•"o-.-er"  V.   Lyer,    59  Vt.    477  i    9 
(Tllus   Cases   159) 
I  '..-ish  you  to  be  prepared  upon  the 

It    i;:    not    every    case    of  accic  ent   th^E-.t    vlll  be  remedied 
in  a   court   of   equity.      The    jurisdiction  of  the  court   of    equity   is 
limitec'    a2u"   defined'  in   care   of  accident.        In  order   that   jurisdict- 
ion may  attach  the  party   seekin,-   relief  must   have   a  conscientxius 
ri,tit  to   relief.      You  must   first  have   what   is  Imovm  as   a  conscienti- 
ous   rignt   to   relief,-   a  right   which  appeals   to  the  conscience   of 
the    court;    secondly,   you  must   have   a   case  v;hich   cannot   be   adequately 
remedied   in  a  court    of   law.        In    r>ome   cases   of    accident   the   conr.ion 


823. 

Atl. 

r.ep. 

last 

case. 

I.  T^quirYjuKisPEUD'^^rc::,  rn:.  3. 

It  w  courts   cun   and  clv/ays  have  afforded  adequo.te    relief,      "^''nen  it 
is    said  thr t   equity  vill   not   grant    relief   in  cc^se    of  accident 
where,  there    is   en   r-equrte   re^.edj^  ft    law,    this    statement   must  "be 
taken  as  meaning  the   relief  G^'anted  "by  the  courts,   of   lav/  r.t   the 
tirae    of  the   origin    of   equity  juris^^ict ion.      At   the    tir:ie    of  the 
orifjin   of   equity  jurisdiction  there   certain   le^al  remedies   in  case 
of  accident.      If  the   case   falls  within  ar^y  one   of     tho- e   you  cannot 
have    relief   in   equity  on  the    c^ouna   of  accic'ent  Toecc/ase    there    is  a 
complete   remedy  at    law. 

IICTATIOIT. 

In   order   that   c;  r-c^rty  mciy  hive    relief  upon  the  grounc.   of 
accicent    it  must   appear:  (1)    that   lie  has   a  conscientious    riqht ,    in 
other  v/ords,    t}iat    he  has    so    suffered  through  accident   tht.t  a  court 
of  equity   ouj^ht   to   furnish  relief;    and,(2j   he  muct   l:i£.ve    suffered   in 
such  a  way  that  he    cfjinot   find   belief   in  a   court   of   law.      Then,    how- 
ever,   it   if    said  that    relief   in   equity  \;ill  never  "be   ,_ranted  where 
there    is   an  adequc.te   remedy  at    lav;,    the    rem.edies   at   !<:.'■  to   which 
reference   is  made,      are   the   remedies   that   v;ere   furbished  hy   the 
coirrr.on   law  courts   at   the   tiaie  of    tZ^e   ori-~ia   of   equity  jurisdiction. 
The   extension   of  the   jurisdiction   of   the  la'.;  courts   does   not   take 
away  t]ie   equity  jurisdiction,    voiless   it    is   done    oy    statute   anc.    in 
the    statute    it    is   expressly    declared   to   tliat   effect 

Pom.   7.0,    Jur.   par,    l&2-3-276-,.cl. ,    inclusive. 
10     3.   c"c  T.Ayrj)    40. 

I  Y;ill   cive    3^ou  a  few  instances   in  v;hich  equity  will 
not    interefere   on  the    ground    of   equity.      If  a  pirty  has   suffered 
an  acciclenti-- 1  loss   as   the    resiilt    of  his   o-.,n  ne,., li::ence,    the    occurr- 
ence  is   not  an  accident  as  understood  c;nd    c'efinediii  equity.        "Equity, 
v.lll   not, as   a  gen.eral  rule,      relieve   a  person  from  a  duty  which  he 
has    contracted    to   do,   h- ,t  which  he   finds   ir.pos?i"ble   or  extre:-.ely 
"burdensome    to  perform.        ?or   insta.'.ce   a  party  contracts   to   erect   a 
"block   of  buildings  v/ithin  a   certain  period.        v.iien  rlmo^t   coinpl'3ted 
the  "buildin,,   is   destroyed  and  he    i.    unable   to  keep  jiis    co.:tract.   he 
would  hcve   no    standing   in   a  court    of  iac  equity.        lie   should  have 
stipulated  against    c  aitin^jencies   o:?   this  kind  in  his   contract. 

Sup-'Ose   a  person  has   leased  a  bull   ing  c^nd  in  tlie    lease 
he  has   agreed  to   deliver  up   the  buildin      ct    the    end.  of    the    term  in 
the    same   condition  tliat   he    received   it,    reasonable  v/ear  and  tear 
excepted.      The  buildin^  is   destroyed  by  fire*        ""quit:'  v;ill  not 
relieve   him  for  he    should  have  mcde  a  broader  exce;  tion   in  the   lease, 
(reasonable  wear  and   dajnage    from  the  elements   excepted,  j 

I-ICTATIOIT 

A  court    of    equity  will   never     rant   relief   on  the    pround 
of  accident   v;here   the   loss   or  liability   is   the  result   of  negligence 


I.  EQUITY     J  U  ?.   I    S  P  R  U  P  Jl  IT  C   E    .    Cr.  4, 

of  the  prrty  seelcinc  relief, 

15  Ver.    757-762-3. 
4  John,    Chanc.    566 
6  IrrdelK   :',C. )    418 
3  John,    44 
6     ITass*    63 

30  I^d,    301(Illus   Cc.sos    165j 
70  llec    2t8(Illus   Cases   652 J 
Prepare   the   la.-t   tv;o   cases   for  a   Ouis, 

PICTATIOIT 

j'^n  equity  court   v/ill  not    interefere    to   compel  the    ex- 
ecution  of  a  discretionary  po\7er  v/hich  throu,_.h  accic'ent   has   not 
"been  exercised  and  this    for    tlie    reason  that   the  party   se^^:in,.   relief 
has  not    su'ostantial   interest    in  the  i^roperty,    he  has    sinply  a  Iiope 
or  expectancy  v.'hJ.ch  has  heen   c.efea^ted. 


oOo Oct.    7,    1903, 


L  ?]   C   T   "  R  E      II. 

oOo 

I  v/ill   refer  briefly  to  tv/o    or   three  more  prominent   cases 
in  which  e  ,uity     ill   intereJere   on  the   ground  of  accident.      In  these 
cases   fl-iere   are    certain    departures    that    rer;uire    ex-  lanation.      In 
case   of  t'-.e   accidental   loss   of  a  sealed   instrument   equity  will,    in 
the   absence    of   neligence,    i:iterfere   and  order  a  reexecution   of  the 
instrujnent   unon   satisfactory  proof   of    the   los?    of    t'.ie   instrument. 
This  action  \7as   tcJren  by  the    equity  cour-ts  because   at    c  omnon  lav,' 
suit    could  not   be 


ever  come    to    li^-ht.      If  3-ou  v/ill   look  tiarouch   the    statutes  at    the 
present  tine  ycu  v/iil   find  t"at    the   statutes  provided  in   case   of 
loss    of   a  sef-led   inctrument   that   a  pj:  rty  mr.y  proceed  at    lav/  and  pro- 
vides  for  an  indemnity  bond.      So  at    tlie  present    time   it   is  more 
usual  to  proceed  at    lav/  and    take  advamtage    of  the  provision  of  the 
statute   t/Tat   permits   the   court    to   order  a  bond  of   incemnity,    than 
to  proceed   on   the    equity   side    of    tlie   court,      Eut   as   I  have  before 
explained   in  connection  v.-ith   tlie    other   cases,    this    departure   of    the 
common    lew  courts   riac    in  no  vey  affected  tJie   jurisdiction   of   the 
equity   court o 

riCTATIOlI 

In  a    general  way    it   nay  be  said   that    equity  v;ill   interfere 
on  th.e   ;.;rount'    of  accic'ent  v.herever  a  prrty  Ms   suffered   a  loss,    either 
as    to   his  pro.-erty   or  as    to  his    ri^htsj    by  tlie   ha"  pen  in  j   of  sane    ex- 
ternal   circumstance   t'.at  has  been   thi-ust   upon  him  Tv'ithout  nesl-igence 
on  his  parto 

A  few  sTiecific   ca :  es_ 0 

"Y^uity  has   jurisdiction   in    case    of  accidental    loss   of  bonds 
or   other   sealed   instrui'ientso      Upon  a  proper   slxiv/ing   '-:;e    covirt   v.'jll 
order   tlie   reexecution  of    tlie    instrujiient    or    ,ive   some   other  decree 
that   v;ill   do   justice   as  betv.een  the  parties c        The    i^ason  for  the 
jurisdiction   is    found  in  the  facts: 

(1)    The  t  profet    of   esi   i;istrument  was   never  necessary  in 
equity.'  as   at    lav/i 

{2}    Because   a  court    of    equity  may  always   order   incer.nity 
as   a  protection  to    the   defendant   against    subsequent   litigation. 
This  a  court    of  Il'v  could  not    do,    but   profert   at    law  h^s   nov/  been 
done  £\.ay   v.lth  anc'.   by  statute  usually  the   lav;  court   nay   order  in- 
de-xnity  to  ba     iven,   but   this   e:<:teusion   of  t]ie    coLT2:ion  lav,'  jurisdict- 
ion coes   not    take   av;ay    the   equity  jurisdiction,    and   it   exists   to-day 


II.         I^  Q.  U  I  T  Y  J  t:  p_  I  s  P  R  u  r,  E  I-T  C  E.   SR,     6, 

anc  is  con  current  vlth  the  lav;  jurisdiction. 

DICTATION 

A  sec  one    case    in   v.-Mch  equity  vdll    interfere   on  t'm 

ground,   of   accident   is   v.-nere  a   necotiaMe   note,    "bill   or   checi:   is 
lost  "before  maturity.        The  reason  for   the   jurisdiction   is   found   in 
the   power   of  the   courts   of  equity  to   indemnify  the   defendant  against 
subsequent    suits   upon   the   instrunent-~a  pov/er  t^-at  the    law  courts 
did  not   formerly  have,      Aut/iority  to   indemnify  has  "been   conferred 
by    statute    in  many  of    tlie    state  upon  the  lav;  courts,    but   this  fact 
does  not   take   av/ay    the    equity  jurisdiction. 

9  Ex.    604 

1  Veassy   pto    341 

101  ^'ass.    370 
If   the    loss   takes  placae   after  the  instrument    is    due, 
probably    according:   to    t}ie   v/eiglit    of  authority,    equity  does   not 
have   jurisdictions 

IICT/.TIOl-T 

Accordin:_    to   tlie   \vei;:ht    of  authority,   probably,    equity 
does  not   have   jurisdiction  v.here    the   lost    instrixnent   is   non-negoti- 
able  or  v/here   tlie   loss   occurs  efter   t  lie  instrument    is   due,    for  the 
reason  that  the   defendant   v.-ould  always  have   complete  protection 
in  a   lav/  c  ourt  o 

Bisph3Jne   pc^ra,    177. 

A  contrary  opinon,  hov/'ever,  prevails  in  sane  states,  Sy 
some  courts,  the  jurisdiction  of  equity  even  in  tliis  case  is  main- 
tained, upon  tlTe  thoor;!,'  t]'Tat  the  defendant  v;ill  be  put  to  some  ex- 
pense in  case  of  litigation  and  that  he  should  be  protected  in  l 11 
such  cases  by  an  inc'emnity  bondo 
53  Gao  36 
27   ::%J.    T.cic    408 

Iiquity  will   never   interefere    on    the   ground   of   accident 
v;here   there   is  a  defective    execution  or  non- execution  of  a  mere 
povver  through  accident.        But   where   the  power  is   a  pov/er   in  trust 
or  a  power   coupled  with  a  trust   the    situation   is   different   anc-    a 
court    of    equity  will  alv.ays   interfere   to    complete  the    execution   of 
an   imperative  power   in  favor   of   the  beneficiary.      'lere   a  duty  rests 
upon  the  donee   of   tlie  power  to   execute  the  power   in  favor  of  the 
benef icir-ry  anc    if   he    is  prevented  from   so  doing  on  the  ground  of 
accident    it   is   only  justice    that  a  court    of  eqviity  should   interfere. 
A  court   of    equity  will   interfere  v;here   an   imperative  po\,'er  has  been 
defectively  executed  throu.,h  eccident   because    tlie   donee  has  a  pro- 
perty   ri^ht  in  the  powero 


II.  E   Q.  U  I    T  Y      J  U  ;■.   I    -^  P   R  U  ^  ."n  ^I  G  E    .      SR.  7. 

riCT/TIOlI 

j'cuity  will   never  interefere   on   the    c^ovuid  of   e-ccident 
to   carpel  tlie   execution   of  a  volimtary  power,   "but    on  the    other  ycnc'j 
the   c  oi'.i*t   v/ill   al' rys    intere7?ere   to  compel  the   execution   of  an 
imperative  po^^-Gr,    the    reason  being  that   in  thelatter  case   the  "bene- 
ficiary un:  er   the  pover  has   a  property  interest   that   the   court    is 
hound  to  respecto 

Pomeroy  Vol.    2,    para,    589-90 » 

Bisphamo  Para,    182. 

There    is   another  case   v.here   a   court   of   equity  will   some- 
times  interefere    on  the    ground  of  accident,    p,lthou:_,h  like    the  cases 
I  ha  e    c.lready  discussed  the   intereference   of   the   court    is   less 
frequent   than    it    formerly  was,  A  person   in  an   action  at   lav/  may, 

throuch   accident,    he  prevented    from  putting  in  a  perfectly   legit- 
imate defense   that   v/ould   control  the  result   of    the    litigation,    and 
judgment  heing  passed  against  liim  he  may  apply  to   a  courc    of    equity 
for  f.n  order    restraining  tlie   execution  of   the   judgment   or  for  a  new 
trialo      Formerly   this   was   very    frequently   doneo  But   the  leniency 

which   is   used  at    t}Te  :■  resent   time   in  allov/ing  defeated   litigants 
to  move    for  a  newtrial  has  done   away   in  a   large  measure   ^  ith  this 
particular  branch   of    ecuity  jurisdiction. 

riClA.TIOII 

Court    of  Equity  may   on  the    groimd   of  accident   tliat  has 
prevented  a  party   fron  putting  in  a  defense  at   law  restrain  the   pro- 
ceedings  to    enforce    the   judgment  at    law  or    set    it   aside    so    ths.t   a 
new  trial  may  be  had.      This    jurisdiction   is,   hov/ever,    not    often 
resorted  t  o  at    thep  resent  time;    the   opportunities   for  a  new  trial 
through  motion  be  in,     ordinarily  sufficient. 

There   are    several   other  car-es   of    accident   in  addition  to 
those    I   have  m.entionedc        For    such  cases    see: 
Pomeroy  Para   183 
Eispham,      Vol»    2,    par.    £37   rnd  notes. 

It    is    sufficient  for  me    to    sug.^est,    in   accition  to   vhat 
I  have    said  upon   th-J    subject,    that    in  any    case    of    accident,    as  the 
term  is  used   in  equity,    where    the  party  injured  has  not   been  in 
defavilt   and  tlie   op  losite  party  has  no   special  equity   to  protect 
him,    the    court    of    equity  v;ill   gi -ve    j-^lief   suited   to    the    case    in 
hand.      The   jurisdiction  of   equity  at    the  present    time  however,    al- 
though it   exists,    is  much  less   freriuently   exercised  tha.ni  formerly, 
on  account   of   statutes  tliat  have    conferred  jurisdiction  upon  the 
Itw  courts. 

rj^T/jiE 

I   come  now  to    the   next   grovmd   of    relief , --mi otsLke,      T'istake 


II.  xt      u  I  T  y    J  u  ;-,  I  •  p      u  ]:  .!".  ::  c  ".     sr,  8. 

has   c'lv/;ys  plryec    an  ini^jortar.t  p..rt    in  Equity  Jurisprudence,    but 
es   in  V.\e   ce.ze    of  tccicent,    courts   of    equity  are   called  upon   less 
frequen':ly  t:-ian  forierly   to    i^.iedy  mistake,    for  the    reason  that 
the   c  cnmon  la\7  courts  hL.ve    assumed  .iurisdiction  in  agocd  niany 
cases  v/here    lormerly   ftiey  hex'   no   jurisdiction.      The   extension   of 
the   ;;uriscictiOi-i   of  t>.e   coi.imon  1b:'  courts  has   c  aie   about   a,lmost 
entirely  by  a  voluntary  extension   of  the  jurisciction  by  the    courts 
the^.selves,    e.nc-   not  by  cny  particular  statutory  chanr-eso 

In  defining  in±jst.ate      accident   I    tried   to   impress   upon  you 
that    it    is   an  unexpected  occui^rence    external  to  theparty  affected 
by   it--in   other  v;ords   that   it   does   no':    ori.;Jnate   with  the   party, 
but    i"   thrust   upon  hino        ^'istaice    is   Just   th3    op   osite   from  acci- 
dent.     ITISTA'aC  IS   Il.T^'Hiy'AI.;    it    oricinates  v;ith  the  party   affected 
by   it;    it    is   the    res'iilt    ofirnorancej    misuncerstanding;    misa3)prohen~ 
sion,      i'r.   Poi.ieroy   defines     mistake   subEtrntiaT  ly    as   follows:    ".'is- 
take,    as  understood    in   equity  as  an   occasion  for   equitable  relief, 
is  an   erroneous   conclusion,    inc'uced  by   isnor?.nce,    misapprehension 
or  nisunderstanr.in,     of    t:ie    truth,    ";hich   results    in   scnie   act    or 
omission  done    or  suffered  by   one   or  both  of  the  parties   to  the 
transaction,    v;i"hout    its  erroneous   character  bein-j   .intended   or 
knov:n  at    the    timeo" 

ncTATion 

TJSTA'T:   riSTI   GUIST^r   ':^C:'   ACCIDEi^ . 

Accicent,    as   the    tern  is   used   in  equity,    is  thrust   urion 
the   party  affected  by   it.  Accident    is   exteriial:    mistake    in- 

ternal,   so   to    speak,  /ccicent  is    thn.ist    upon  a  party;    mistake 

ori;  inates  v;it*h  the  party   t'lrou^h  his    i_norance,    misapprehension 
or  misiinderstandlngo      I'ejlicence,    hov/ever,    can.iot   characterise 
mistake    in  equity   any  more  tlii-n   it    can  accidentc 

irr^niTIOl^:  "istrl:e   is   an   erroneous  conclusi  ^'i-,    induced 

by   ignorance,   misapprehension   or  •■.isuji   erstandin;;:   of   fie    truth,    brt 
\;it>out    the  presence   of  iie  .:lii:;ence,    v/Iuch  results   in  some   act    or 
omission,   which  it    v;ould  be  ajainst   equity  ?:nd  good   conscience   not 
to   relievGo 

Pomeroy,    II,    parao    £59«, 
.""ispah,    parao    IfcOo 
All   possible  mistakes  may  be   divided   into: 

{1)    !if^TA':is  II'  :'AT^y.r^?>  o^  ia.y/; 
(2j    :n:sTA3]s  i:;  VA'^T^.v-.r,  o?  ?act. 

I  will   consicer  the   subject    in  t^ie   order  menticnedo 


— -oOo---  Octo    7,    1903» 


III.  :S   q  U   I   T  Y      JURISPRUDENCE.      S   R.  9. 

LECTURE      III. 
oOo 

In   exa^ininty   the  TdooIcs   upon   this    sutject   of  nistake,    you 
will   find   that   the   authors    are   somewhat   confused  upon  the  defini- 
tion  of  rdstake,    definin-?;  it   as    the  result   of   i'^orance,   misappre- 
hension  or  misunderstanding.      Pomeroy  says    that  mistake   is    some- 
thing that  flows   from  i;po ranee  'jy  which  a  party  has   suffered  a 
loss    of   rigtits   v/hich  it  v/ould  not  be   equitable   to   allow  him  to   con- 
tinue  to  suffer,      lie  misses   the  point   there.      The   ignorance  or 
misconception  is    the  m.istake. 

It    is   a  well  known  maxim  tliat   ignorance   of   the   !law  is   no 
excuse   to  any  person   either  for   the  "breach   or   omission  of  duty. 
As    a   /"general   rule,    this  meisim  may   be   said  to    exist    in  equity  as 
in   law\      It   is   the   general   rule   that   a  mist^Jce   of   law  cannot  "be 
ur.r^el   as   an   excuse  for   an  act   or  for   the  failure  to   meet   obliga- 
tions.     But   v;hile  the   fjeneral  doctrine   that  mistake  of  law  is  no 
ground  for   relief   prevails    in   equity  as   in  law,    its   operation  in 
equity   is   not   universal.      As   a  :iiatter   of  fact,    equity  does   some- 
times   exercise   jurisdiction  on   "ccount  of  mistakes    of   law  pure  and 
simple.      In   order  to  understand   the   sitT;.ation  we  must  have   a  clear 
■understandin-T  of   ^rAiat    is   included  within  the   '-^eneral   term  MSTAKES 
OE  LAW. 

A  mistake  of  law  may  be  an  error   in   rer^ard  to  some  part 
of   the   general   law — the  law  that   goverx':s   our  public    relations,    the 
law  thxat   governs    onr   personal   conduct,    the   law  that   governs    the 
status    or  citizenship   of  a  person,    the   lav/  that   governs   the  dis- 
tribution and  devolution  of  property,    the  law  that   applies   gener- 
ally to  all   persons.      On  the  other  hand,    a  mistslre   of  law  may  be 
an  error  of  tlie  party   in   regard  to  his   ri7hit3   and   interests   con« 
nected  with  the  particular  transaction.      Si;.ch  a  party  may  be   in 
error   as    to  his    existing  legal   righ-ts   and   interests    that    are  to 
be   s.ffected  by  the   transaction,    thot:g]'i  he   comprehends   ■fin.a.t  will 
be   the   effect   of  the   transaction  upon  his   supposed   rights.      A 
mistake   of   law  may  be  confine!   to   one  party   to   a  traiisaction  or  it 
may   extend  to  all  parties.      A  ?..^ISTAKS  AS   TO  TIIS   GEHERAL  lAW  is 
without    rem.edj''   either   in  law  or    equity.      The   question  now  remains 
how  far  does    the  m^j:im  apply  to   miststlce  as   to    individual   ri.ghts. 

DICTATION 

The   general   rule  is    that    ignorance  of   the  law  is  no 
excuse.      As   a  general   rule   equity  will  not   interfere   to   relieve  a 
party  on  the    rcround  of  mistake  at   lav;.      We  may  have    (1)    MISTAKE  AS 
TO  THE   (SI^raiEAL  LAW;    this   will  never  be   relieved:       (2)    MISTAKE  AS 
TO    THE  LAWCOVEHIITG  A  PARTICIULAR  TRAJTSACTION.      The  general,  rule   is 
that    equity  v/ill  not   relieve   in  such  a  case. 

As    to   a  mistake   concerning  individual   rights,    the   gen- 
eral  rule    is    that    the  party  cannot  Jiave   relief   against   a  mistake 
of   law  pure  and  simple   regarding  his    individual   legal   rights j 
but    in  order   that   this 


III.  :.    '  t:  I  T  Y    T  -;  i^.  I  •   -  .    u  :   j^  •■:  :  r.     he.  lo 

rule  ^''ir--"'  -'"^  ly  ^-'^f^  ^ !'='■<■'- ye  '^ust  '^^  on~  o*"  Ir™  pv.re  rri''  r.ir^-nle. 
I"!:  ."I'.st  not  13  8  induced  or  &cca.T''.' nied  "by  othar  speci:l  circun- 
fitc:\ces   t-i.t   ■.■oulc"      i--?.    rise   to   r  n   equity   in  behr.  If   o:'    i.he   ■^■j.-rty 

"0  hr-s    corT"i'-.tad   t'^3    "ista.je,    such  as  ^/rarit    of  'rr.ovlvTafre   of  ?11 
t"-.e   .'IT  "erip  1   fects,    or   inequitable    con  uct   on  the  pDrt   o:.    the    other 
pc  j-ty   to    t]\-    tr£..)isc;Ction.      Eut    this    is    ti^.e    ,.enerrl   rule,    anc    \:e 
Bho  11    fint    t"rt    sori  et  inie  s    in    case    of   a  nistovlre    of    li  v;  pure   i  nci 
s  i  np  1  e ,    e  c;i'.  i  t  y  na  y  c  i ve    re  li  e  f . 

In  the   o   of  ■''heat on  174,    ^-.••lich.  ip  proiiaDly   the   ler.din     /ueri- 
crn    case    on   -.'.  e    .--:"i.fo,ject ,    a   creditor   tool:   frou  j\is   debtor  a  peer 
of   r-:torney  to   e::ecute   t'^e    sale    of   ;     c-hip.      In  t--.  I:in.    t]ais   po'ver   of 
a'.torn.ey  '-.e    ^up-o^ed  he  \.'as   t\,ettin..  £     security  as   velid  is  a   r.iort- 
oa.'_-e .      P.uhseqr.eritly   the   c-ehtor   died   ar.d   of    course   the  .  O'./er  of 
t ';■■■. on:ey    -.^.s    revoked  h:.'  his   ceath.      It   \:vs  held  that    t'  e   riista.ce 
of   t--e  pc  rty  cs    ",o    'c'le    effect    of    the    i:io  riu.ient   "..'c.s  no   ,_^roun(.    for 
relief.       ."•\e    case    -.ent    to   t'-e    Sup  re-.ie   Court   t'-./ice   anc.   one    of   t":e 
0   inons  v:?- s      i-en    oy  C.T.    cu'shal  anc'    the    other  by   Jur.;tice  '"as'  in,_- 
ton.      T/^e    esse    is   v-  lu:  hi-;   jiot    only   on    ..^lis   subject,    but   r.lso   on 
t'le    subject    of   j'-^ey-.c:', 

}■  >^lstllze  ric.y  be  :  s  '.o  (1)  tb_e  1  e.;:c'.l  i::.port  of  z-.  trajisac  .ion, 
cs  to  its  si  ni'iciMce  in  tb.e  la*:;  or(£)  a  siistake  in  re'.ucin  the 
trar.  r;  c'.ion   to   v;ritinj.  he  rat.y   -..se    terns  th;  t  hc.-e   c    le_;c  1  rne  an- 

in;,   different    i''rom   ""~.e    one  in  .erided. 

-icf.'Tior. 

/   nistal'.e   as   to   t'-'e    le^-al   in.  ort    of   a  trt  r.saction  or 
as    to    tiie    le,,'l  rneanin;-,    scope   and    effect    of  a  v;ritin£j  t'--i8.t   exi^ress- 
es   a   tra.siction  as    it  T.-as  un  erstood  anc      desi.jnec'   by   f-e   v.arties 
t"  at    it    f;"!iO';.lc'   be    exj-'ressed  c:  nnot   be    relieved,   in  equity,      Cc.rt:^. 
of   e    uity    tc-"-:e    tlii      position    (1)    because    i":   is   necessary   in  orrer 
tb.et    t]iere  rv  y  be    certointy   .  m     secr.rity   in   rejtrd   to    le^rl    ri.jlits; 
(2}      becc^ise   t  ^e;-    Tould   other-,  ise  be  :;.c  ".dn  ,   t    contr:ct    for  tf.e 
'pcrties--   Cf/rryin      out    .  :•;   indention    th-t   fie   .'crties   did   no:    ■;■,  ve 
r.    the    tine    they   entered    into    the    tra.'.sictio-n, 

/    cotirt    of   e   "ity   ■■.111    refonri  r    contr:ct    in  orc'er    to  nef'e    it 
co"'xforn    •:o    the    intentions   of    the  parties,    but   .-.    cou'.-t    of    equity 
j   wi^l  not   nc':e    r    oo  n tract    for  t'-.e   ■.-'arties. 

It    is   -.veil    settled   thc-t    the   parties   are   bomic    cy   the    l-i^al 
conr3c:uences    o.     their    deliberate   a^reenents   an^     acts,    i:i   the   abserice 
of  frjud,    c  oncealr.ient ,    nisrepresentat  ion,    undue    influence    or  othor 
inec/uitv.  Mr;    concuct    on  the  part    of   t>e   other  prrty   to    the   ri-ariS;  ct- 
ion. 

&  ^"^-.eaton   174 j    1  Pet.    l(Ii:us.    Cases    170} 
Prepare    this   case   for   ^uiz. 

:^  IT. J.  p;o.  14c 

42   Io?;a   1C7 

45   lov/a  3.-;i 

lb   -  .  r .    I^  q .    3  J  6  -  7  4  . 

5     hich.    100. 

■^orneroy  !"q.    II,    par.    843, 
The    question   of  nistcJce  n;  y  be    raised  either  a    "iniitively 
upon  a  bill   filed   for   refo  motion  or   cancellation,    or   ne_,ctively 
by  v/;,-:,-    of   <refe;ise. 


III.  .       :  ^  ";  I  T  Y    r  :'  :'  i  ^  "^  -.  •;  :    v,  "  ce. 


'^«  11. 


'■'e   C0;ne    lo;;   to   .     consi.  ert  tion   oS   the  secon.     o"    the    t-.o    ''i"'«r- 
ent   'cinc's  ,oC  inists/res   o      l'-.7,    namelv: 

(2j  ^  iRT/;T]r  cc  iJ^'  rr  wzmct::-..     Ac^krT^^iT  to  ^"pi"'I''"g. 

"here   •.  n   instrument    is   c'.ravm  an.     executed  v.-hich  is    intejiced 
to    embody  an  a^TeeMsnt  previously   enterec.   into,   but   ^/hich  through  a 
rair.t' ke   i.s  to   the    1 -jivl  neaiin^;  ajid   operation   of    the  t  erms   used   in 
the    v.ritin^-  f&ils   to    ex  ress   such     n  j;{jreej:-ient ,    equity  v/ill   inter- 
fere  to   the    Sc  ]ne    extent    cs   if   t--.e    f.  ilure   of  t>E   v/ritin^:   to  express 
t"  e    rec-,1   contra.ct   ht-d  been   cf-.used  by  c    mistilce    o':  fact, 

riCT;Tio:: 

Ir.    case    there   ht.s  been   a  iriirt?}:e    in   reducing  tn   Ctireernent 
to   v.'ritint.-   equity   -.ill    ;rant    relief,    for  by    so   coin.;   equity   ree£:tj,b- 
lishes   the    ori,-:ini  1    oontrcCt   between    the   p^irties, 
64  Conn.    •':B 

29  /tl.  Kep.  133(Illus.  Cases  :.27J 
12  r'.J,  ;rq,  lS5(Illus,  cases  186 
55  lov.'a  4o4 

6   :\''^,    32    (Illus.    Cases    184;. 
141   U.S.    250. 
Be  prepared    on  these    cases. 
/■    pc  rty  may  be  mist  rice  n  as    to  his   antecedent^  i  n;,    exist  inj^   le  .al 
rif'hts ,    interests    or    lij.bilities,    v/hile   he   u  ^"erstancs'~full\~  vrhat 
"111  be  the   1  o  .'l  1   effect    of  a    transaction  upon  his   sup    osed_  ri  hts , 
in  terest  s,    chities    or  liabilities.  Thus   a  person  inay  "ei-roneouily 

sup    ose   t''X' t  '-.e  has*  a  li?e' interact   only   in  v    certain  parcel   of 
land  while    in    fact    he    1:    t 'i.^    ovmer   o      th.e   lane    in  fee.  ^'e      ives 

a   release   of  his   interest    in   the    land,    irnov/inc  that    tlie    le,qal    oper- 
ation  of    t^ie    conveyance   is   to    release   a.11   the    interest   v.'hich  'le   -".as, 
biit   he    is   mistaken  as    to   the    extent    of    t'^at    interest.      Is   this   a 
niistJke    of   Ic       o:-   fact,    i  vic    i?;    S'aere   tix"  relief   in    eqviity   for  a 
part3^   so    ritvxted? 

I;    cases    of    tliis   kind   courts    o.     ec;uity  follov/  th.e   cer;ii.n<~s   of 
justice   and  aid  the   p&rty  v;ho   Iir  s      uffered  v/henever   it    is   pos;?ible 

;a"?le 


h:   party  as    to  his   cntececeni 
court    of    ec^uity   act?   I   thi:ik 
follo-viii  :    cannclusion  vfill  be  justified  by   the   authorities: 
Y'^'^enever  •:    person  is  mistaken   as  to  his  previous   anc    existing  pri- 
vate  le  .,al  ri~hts    or    liabilities,    either  as   to  property   or  concerni: 
contract    relations   or  his  personal  status,    enc    bein_   so  mistaken 
enters    into   a    transaction   the    l'";;;-al    scope   of  v:hich  he   fully  unc  er- 
stands,    with  the   view  of   affectin,-  such   suppiised   leG^^l  interests, 
equity   v/ill   refjard   the  mistcke   anr    deal    'vith   it   as   a  mistr  he    of 
fact    anc    ~rant    relief   either   af  f  ir.iat  ively   or  ne^-atively  according 


Ill,  7"   0     ,    I   T   Y      J  U  "'^   T    '^  "^  '■"   t;  T--   1^  " '  (;;  T?        op  12., 

to   the    \jd:j  t>Te   rnctter   is   presented. 

The    •jeneral  attituce   of   the   courts    is   r  I'/.-ays    in    ftvor   oi 
grentin;::    relief  un- er    tlie    circvon  stances    suj^ested, -t  iie    equi  :y  of 
t^ie    situation  a.  vjer.ls   to    th.e    court    -  nr    the   court   v/ill   relieve   the 
situction   if  :/Ossi"ble.         '"one    o      o'-o    courts   speal:   of    .he   raistalce   as 
Ojie   0..'    -.';ct,    others,    f.s   t    mistt'ce      of    If.v;  a  :;.  lo  ^ous   to   z    nisti.e 
of   ff.ct.      T^i;  t    is  v.'hat  "  oneroy    see   s   to   thin.".,   it   is.      Other   cov..-ts 
sa'    it    is   a  rnistahe    of   lav/  pure    i.:u     simple,   "but   it   is   z    nit.tc.ice 
thf- 1  e.  uity  ought   to  relieve, 

nCT/TIOi: 

•■"en  ever   6   person   is  miFtr"';en  c.s   to  his  pr-'-'ious   f  nci    ex- 
istini:  ri^jhts   vnC.   li;  Mlit  ies    or  his   personal   status    and,    beiii,,    so 
nistt  l<Bn,    enters   into   ;  transaction  the   1  3l;;'1   scope   of  r.'liich  he 
correctly  \xn   erstrnds,    with  £    view  of   affect  ixiG  his    sujj    osed  ri   hts 
or  li;  "bilit  ies,    equity  v.'ill    interpone   z^n^.  v/ill  de;  1  '.Ith  the  mistake 
£-.s   one  of  f  ?ct , 

L;"  Peps.    2   ",    of   L,    149 

91  ^'icJx.    1(    Illus,    Crses   .-lOb) 
Prepare   f-^. e  lest   case    for     ^'uiz, 

98   lov/a  3::4(    Illus   Ccses  201) 

39  rinn.  464 (Illus,  Cases  :;09J 

■^oneroy,  II,  y^t  r,  £49. 


oOo Oct.  1".,  1903, 


17.  E   :■    ■     IT  Y      .7   '^  R  1    r.  P   T.  U  L  E  17  C  E.    SR.  15. 

T,    T?    f!     T    TJ    M     T?        IV, 
oOo 

There   iire    one   or  tvro   exceptions    to   the   general  princiv-le 
laGt    rtc.ted   in  ths   ;:.r3-.'ious    lecture.      (1)      Hhere  noney  ii:.   i-aid 
11}:. 'er  gii.'taJxe    of   lav/  a's    to    liability  to  nc.ke  payment   the  party 
5  0  payin^   ca  •  not   recoi-'er    the  money  'brick  either   in   lav  or  equity, 
•or  a  i^ood   man:'  yecrr.  t'.is  has  been  doctrine  at   law,    hut 
it    seems   t-xit    if   I  pay   out   money,   misunc'erstc-nain;;  mj''  present 
or   anteccn'.'ent    rir^htc,    t}Tat    equixy   ouht   to    ^jrant    relief.   Put 
t'le    equity   courts  hold  v/ithout    exce;ntion  that    relief  will  not 
he    ..ranted  under    such  circumstances   and  tiney  do  not    tell  you 
v/hy  they  refiise   it.     Prohahly  their   reason  for   r^of using  re- 
lief  is   tecause    trey  are    impressed  v;ith  the    importance   of   foll- 
o'.ving   le;al    decisions  and  legal    -recedent s   t.Vjat    are   -.veil   es- 
t:.  hlished  and  h^ve    lon^"  heen  .  cted  upon,      '^oueroy  ano    Stor;.' 
su£,::est   that    this    is   tr:e    reason.    Of    course  money  p:.id  uncer 
mista-'re   of  fact   can  "be   recovered  hack  "both  in  lav.-  and   in 
equity. 

In  ?v;i(;;l:inc:     :.■•'. ere   is   sr.    exception   to  t"ds   doctrine,   ^'.n-.ere 
mone;;'  has  heen  paid  ian.:-er  misttUre    of   Isiv  to  an   officer   of 
t'-:e    court    or  to   a  xrustee   actin.-  rvnder  the   cifection   of  the 
court    in   a   ■;  enoint-r  r.roceedinc   it    can   'oe    recovered   in  an  equity 
act i en. 

ITCTATIOIT 

It    is  ■'.veil    settled    tliat  money  ps.id  under  mistake   of  1e\7 
as    to   ]if.hility   ^o  mfu-re  payment,    t-t   with  full   ^riov; ledge   of 
all   t>te    facts,    cannot  he    recoi^red  Vack  either   in   equity  or 
at    lav;, 

Pomeroy,    Vol,    II.   par.    551 

4ff  17,Vr.    567}    39   ::inn,    461(209] 
There    is    an   exception  to    this    doctrine   in  England  where 
money  hpr   heen  paid   by  mistake    of    lav;  to  an   officer   of   the 
court    or  to   a    trustee   acting  under   t'le   direction   of    the    court. 

Law  P.eports,9   Chan.   App.    609 

Law  Rep,    32   Oian.    :  iv.    597 
The    reason  for    tJnis    exception   in  England    is    that    the  money 
has   not      asr-ed    ceyon.-'    the    control   of   the    court   and    it   -ould 
be    inequitable   to   perrni  .    it    to  be   nisap-ropriated,      Lly   im.;.  ress- 
ion   is   tmt    tMs   would  be   t''e   la-i.v  in   this   country  v/]:en  the 
question   is    directly   raised. 

There   ir^   another  excerption  to   th?    general  rule   t"-'£;.t 
equity  v.'ill    tyrant   relief   on  t/.e    tJround  of  mistake    of   la?/  -."here 
a  person   is   mistaken  as   to  his  present    or  antecedent    rights 
and  proceeds   upon  this   mistaken  notion.      The    exception  to 
v;--iich  i    reTes   is    in  tj-.c   me.tter   of  compromises.      It    is   elementary 


IV.  E  0  •;  I  T  Y    r  u  ]■:  I  p  p  R  u  :r  r  X  c  E    sk.  14. 

that   c  onr.ro-^.  ip.es   are   hi^rhly  favored  "by  courts    of   equity.   Equity 
courts   c.ire    said    to   aohor   lit  rjat  ion  a.id   to   favor  aro' thine  tl-at 
lesL-ens    it.         I-^   the   aosence    of   inequitaole   co:i  uct    in  "brini.":- 
ing:  t'^p.    co.-.iy.'romise  Vbout ,    t"ie   c  our;    cf    equity  will  not    inter- 
fere  for  any   ore.  incry  :riistake    either   of   lav;  or    fact.      In  a 
corrprorr.ise   a.  party  will   not   "be    relieved  even   though  he  pays 
money  through  a  ^nistake   as    to  his    le;.,al  rights.      Tne   very 
essence    or   ohject    of   a   con  romise    is    to   avoid   litigation  and 
to    settle   a   suit    •.-.•ithoi.it    controversy.     A   co-r  .'-omise    is  a 
surrender    of   '■:ertain  ri~lits  "by   the  pti:-ties   v.nd  a  party  r/ter 
he   has   entered    into   a  co::'   romice   v;ili   not   he   allov/ed   to   claim 
that  his   rights   were   more    value. hie   t'^an  he   supposed  at    tlie 
tiine   he   made   t'~B    C3npro:nise   and    t   at   he    rhiould    oe    relieved   in 
equity   on  t:ie    gr-o^unc'    of  mistake. 

In  or'  er    t^at    a   -arty  may  "be   esto:"pecl    IVom  attacking 
a  co:nprcrnise   -shore   ;nust   he   an   entire   aosence   of   fraud,    mis- 
representation,   concealiP.ent    or   other   inequitchle    conduct   ct 
the    time    cJ    the   niakinr,:  of    the   ccnpraiise  hy  tiie  parties.    If 
fdere  hi  g  heen  t.^y  ineq'aitable    conduct   the   c  cnp;- anise  may  be 
set   aside   on  the    ground   o.f   fraud.        There  must  liave   heen  at 
t"^e    tine    o."    ine   .laking   of    the    compr  anise   an  entire    a.  .d  full 
disclosure    of   all   t'-^e   riaterial  f;;cts   within   t]\e   knov/ ledge    of 
tV.e      -rties.      The     .arty  must   not    onay  disclose   those    '..'hich  lie 
knows  hut-   a, Ir.o   those    fiingr.   V;''!-.ich  the    la'v  presumes   nim  to   hno^v. 

hlCT/.TIOIT. 

/nother   exception  to    the   T'rinciple   tv.at   equity  './ill   grtmt 
relief  -.vhere   a  person   is   mistaken   as   to   his  present    or  ante- 
cedent   legal   rights,    is   in  the    case    of   compromises.      Equity 
ff.vors   c  y-L   remises   a:vj.  will  not    set    t^em  aside    on  the    ^roLind 
O':"  ;r:i&ta'ce    either   of   lav.'   or    f£ict.      lut    it  .Lnust    v.      ear  hofore 
the   court   can  he   asked   to  take   t'ds  position  that    t.here  has 
heen  no    fraud   in  connection  with  the    compromise   and   tliat    all 
parties    thereto  have   made   a  full    disdosure    of   all   the   material 
facts. 

31    R.'\    127-,  97   -■':/,    567  J    111.    Cs.    f^OSj 

51  '"e.    6b(Ill^    Cas.    Ibi; 

I^ICT/TIOr 

.'    com'Tonise  allv/ays   emhrrces   the   sur'r^nc^er   of    sane   right 
and   if  «    :c.rty   attacks  a  compromise   on  the    ground    of  fraud  he 
must    alv/ays    return   or   offer    to    return  v.'hatever  he  h..:.s   received 
thereunder   other';<'ise   he   -.'ill   he   deemed  to  have   affirr/ied  the 
comp'ronise. 

^■r^   hich.    344 


Courts    of    equity    are   alv/ays    on   ^he   alert   to  ascertain   ii 
there   }ias   heen  iurjy   fraud   or    overrercMng   in   connection  with 


IV.  J?  q  i;  I  T  Y    J  .:  e  i  s  p  p.  u  :^.  e  it  c  s.  sr.       15. 

a  mif.-take    of  law.      If   a  mistrke    of   lav;  i^     iiie   rosult   of   fri-ud 
or    concealnent    on    the  part    o:"    the  other    .arty   it    certainly 
v;ill  iDe    relieved  in  a  court    of    equity. 

ncTATio::. 

'    court    0""    equity   is   al7;ays  upon  the  alert    to    di.':co\-er 
fraudulent    or    inequi  ■.able   conr'uct    and   if   a  mistalce   of   la'.7 
has   "been  "brouglit  about   by   such  conduct   the    court   v.rill  always 
grant    relief  basin^    its   action  upon  the   fraud  and   it    is   not 
necessary   that    the   conduct    of  the  parties  be    intentionally 
fraur  ulent    if   it    is    simply  misleading   it   v.lll  be    sufi'ici'Bnt 
basis    for    t;7.e   coi;rt    to     ct   upon, 

■^urt -'ermore   a   court    of  equity    v,lll  not   pennit    a  party 
ar.vantage    of  a  mistalce    of  lav/  by   th.e   other  v/hdch  he 
and  did   not   correct. 

Pomeroy  Vol.    I,    13  5,    Vol.    II   847-8, 
51  "e.    324(    111.    Cases   18i; 
closing  v;hat   I   licve    to  say  upon  this    subject    of     uis- 
lav/,    I   ',ould  suggest   t^is.t    a  court    of   equity   vail  riever 
grant    relief   unless   t:ae   mistake   Is  material   and  unless   the 
conduct    of    the   parties  has  been   influenced  by   it.      In    such  a 
case   equity  vail   interfere.      The   mistake  must   be  the    essence 
of    t}ie  transaction   in   order  that    equity  will   interfere. 

EI  C  TAT  I  Oil 

In  order  t'lat  the  court  maiy  interfere  on  the  ground  of 
mistake  of  law  the  mistake  must  be  material  and  the  conduct 
of    the  parties  must   be    influenced  by   it. 

rj^-T./u-llS   AP   TO  'A.TTERS   0  '    ZA.CT . 

nCTATIOlI 

Jurisdiction   of    equity  for    t]ie  purpose    of   corr':5cting 
mistakes   of  f ;  ct    is  a  very   general  one.      The   general    nile    is 
that    any  act    done   or  c en tract  made   under  a  mistahe      of   or   in 
ignorejice    of   a  material   fact    is   relievable    in   equity,      Th..  t 
is   th-s    '"eneral    rule.      That    rule   "as    sane    importaiit   exceptions 
\;hich  I   will  not   have    time    to  take  up    t'^is  morning. 


to    tt 

.he 

knew 

of 

In 

take 

of 

oOo 

Oct,    20th,    1903. 


V.  E    0    U   I    T   Y      JURISPRUDENCE.       SR     i « 

L  E   C    T   U   R  E   V. 

•If 
oOo 

MISTA:.ES  AS  TO  MATTERS  0?  ?ACT . 

A  court    of   equity,    where    there    is   no   adequate    remedy   at 
lav/,    will   always   give    relief   for  a  nistake   of    fact. 

There   are    one    or   two  exceptions    to  this   ge  leral    rule,    tut 
"before    goint,    to  a    consideration   of    these,    I    would    suggest      that 
although  equity   is  very  lenient   and   the   jurisdiction   is    very 
hroad  and   extensively   exercised   in   regard   to  mistakes   of    fact, 
yet,    there   are   at    least    two    classes   of  mistakes   of   fact   that 
will  never  he    relieved   in    equity,      V.Tiere   a  mistake    of  fact    is 
connected  wit):  sane    speculation   and  the  mistalce    is    in   regard 
to    tlie    result   (^    Uie    speculation   equity  will   never   grant    relief, 
^/here  the  mistake    is   as    to   the   value   of  the    subject   matter   of 
tlie    transaction  equity  will   not    :jrant    relief.      The    question   of 
value    is    largely  a  matter   of    opinon. 

In   order   that   equity  may    act    in  cases   of  this  kind   it 
must   not    only   e.,r'ear   that    there    is  no   adequate    remedy  at   law, 
hut    it   must    also  appear   that    tlie  mistake   is   a  material   one. 
She   mistake  m.ust   he    of  the   essence    of   the   contract    or    trans- 
action and   not   merely   incidental   to   it,  T^ie   mistake   must 
not   he   the    result    of   the   want    of    tlx.t   care   and  diligence  which 
a  perFon   of    reasonable   prudence   v/culd    exercise.      If   it   has   been 
the    result    of  negligence    on  his  pj;rt   the   party  cannot    come    into 
a   court    of    equity  and   ask   relief, 

DICTATION 

It    is    a  general   rule   that    equity  v/ill    relieve    in   case    of 
mistake    of   fact    if   there    is   no   adequate    remedy    at    law.      /Imost 
any  mistake    of  fact  may  be    the    subject    of    equitehcle    relief. 

There   are  two   exceptions,    however, to   this    rule: 
(1)      V,here   the  mistake    is    in    regard   to    some    specult:tive    trans- 
actioni     (2j    V.'here    it  has    to    do    'vith  the  viilue    of  z'\e    subject 
matter   of  V-\e  transaction. 

LII^ITATIOIIS  UPOl'T  TliE  KUIJi] :  (Ij  Mistake  must  be  in  regard 
to  a  material  fact,  of  the  essence  of  tlie  transaction,  and,  (2) 
must  notlaave  been  brought  about  by  the  negligence  of  the  yiarty 
seek in      relief. 

Pomeroy  Vol.    II,    par.   852-6. 

Story,    Vol.    I.    140-152. 

93   U.S.    55(111.    Cases    214) 

153   Pa.    St.  3i 

25    .'t,    1007  (    111.    Cases   214.) 

66  I'l.h.    136 i    19   Atl.    1092(111..    Cases   218) 

75  IT.y.    55(1-1.    Cases   2^0) 

51  ris.    431 

8  IT.V/.    260(111.    Cases   223) 


V,  E    q  U   I   T   Y      J  U  p.   I    S  P   I^  U  T:  E  N  C  E.    P?..     17 

VA^^TEP.   OS'    F,"0'7]ITG  KISTAES    0?  Tj:.^7  A.'I^    iY.CT . 

If   the    transaction  pro-p'^r ^j'   rests    in  ])arol,    tli-^re    is   of- 
course,    no    question  "but    t>at  y.rrol   evidence    of    t^e   viisttlze   is 
proper.      In   is    only   in   cases    of  raistake    in  transactions    tliat 
have   been    reduced    to   vvriting  that      any   difficulty   cun  arise. 
It    is   a   >^eneral   rule   thc-t  p:  rol    evidence    is   not   ai.ninBible    to 
vary   tlie    terms    of  a  written  contract.        Tl.is   doctrine    is  nur.e 
for    th--^  protection   of    the   j.c.rties   and   it    is   assumed  hy   t]ae 
co\irt      that   where   a  party  ha,s    reduced     a  transaction  to   v.ritinc 
it   contains   all    the  elements   of    the  a^'reement   and  t-:ut   t'le 
writinr    is     much  more   satisfactory   evidence    of    the   ccreeyient 
than  pare],  evidence.  There    is    an   excef-tion  to   t'rds    coctrine, 

which   is   as   eqiia.lJc,"    ^fsll    settled  as    tiie   coctrine  itself,      Trjiere 
the    contract    or    contract    is    in  \;riting,    there    is   rn  sixeption 
to    t]ie    i\il e  of  evidence    t -ts.  t  excludes  parol  evidence,    \j}iere 
it   appears   that   the   case  irust    turn  upon  fraud,    accicent,   mis- 
take  or   surpise.        This    rule   was   established  foi*  the  purpose 
of  preventing  fraudj    without    the  exception  to    tii  e  rule, 

in   the  cases  mentioned,    t.he    rule    itself  v/oulc  be  turnea   into 
an   inst^rument    of    fraud, 

DICTATIOII 

HOY/  ACCIDE^IT,    I/IISTAICE,    ETC.   IIAY  BE   SI-I^'MT. 

It    is   the  general  rule   tmt   a  v/ritten    contract   ca:inot   be 
varied  by  parol.      If    then  t'^e    contrtict   that    is  affected   oy 
accicent    or  mistake   is   not    in    v.riting  tMs    rule   will   not    inter- 
fere v;ith   its    refonnation   or   cancellation  on   the   ;jt-CT.uid   of  r.iis- 
take,    but    if    it    is    in   v;riting  the  rule    in  terns   applies,   but 
there    is   an   exception  to    tlie    r'jle    in    case    of  accide.".t,    .aistake, 
fraud   or    surpise   that    admits   narol    evidence.      The    exception 
being   as   equa.  lly    vjell   settled   as   the    ride    itself.      '.'"^le   rule 
was   formulated    to  prevent  fraud,    but    to   allov;  it    to   be  fap:-''lied 
in   tlie    ce.ses    suggested  would  be    to    turn   it    into   an   instrur:ent 
of   fraud.      This    a   court    of    equity  will   never  pernit. 

20     lie.    363 

101   U.r.    577(    111.    Cases   231) 

?:orES  AiiE  TvErEriES  iii  case  ov'  itistai-^] 

The  jurisdiction  of  equity  in  cases  of  -  listake  may  be 
exercised  either  affirmatively  or  defensively.  One  of_the 
most    importfrnt   of   the   affirmative    reriedies   is   that   of  Kef onnatioi. 

hen   an  agree::ient   has  been  made    or      a    trar^saction   er-tered   into 
by   the  parties,    and   in   rec'ucing   suc'i  agreement    or    transactior. 
to   writing,    through   a  raistake    common  to  both  parties   tr.ereto, 
there  has  been  a   frilure   to   express  the  real   cgreer.ient    of  the 
parties   in  the  \.ritten   instrument,    a  court    of    equity  May    reform 


V.  EQUITY    J  u  K  I  s  p  r.  u  L  ic  :j  C  E.  p:..      V" 

the   instniment    fo   t'^pt    it    shall    trijily   represent    t^ie   agree- 
ment   or    transaction. 

T;i.e   mistake   must    oe   rnutud.      yrr:y  must    it   "be  mutual? 
If   it   were    rTanted  v.f'-.ere    the  :""iistElce    is   c  aifined  to    o.:e  prrty 
it    Vjould  "be  making  a  contract   for    the  parties.      It   '■  ould   oe 
forcing  a  contract   upon   one    of   t]^e  parties   tlat  he   never   i;:teii- 
ed   to  make,  Y-liere   the  mistake    is   unilateral  all    t/iat   a 

court  of  equity  can  do  is  to  cancel  Ihe  instrument  c  j'or  in 
such  a  case  the  instrume>it  is  not  the  contr.  ct  of  either  of 
the  parties    for    their  minds   have   not   met. 

It    is   Vtrell    settled   t  iiat    v.here   a   suit   hcts   "been  properly 
brought    to  reform  a  written   instrunent    on   the   ground   of  mutual 
mistake,    the    fact    of  the  mistake   an...  how  the  v.-ritir.j   should 
he   clianged   so   as   to      confonn  to    the  intentions    of  t"  .e   parties, 
mey  be    shorm  by  parol    evidence.      This    evidence   mus '.    'be   clecr 
and    convincing.      It    is  not   by  any   ordinc:ry    evidence    fiat   the 
solemn   declarations   of      the  ;';arties    incorporated   in  f       ritten 
instrviment    are    t  o  be   set    aside.      It      is   not    sim})ly   c.   ;.repond- 
erance   of    the    evidence,    but    it   must    be  clear  and   convincing  :.n& 
go   to   the    very   root    of    tlie    question,      'Inc~er   :.  uch  circ 'xista.-ices 
a    court    of   equity  will   decree    a    reformation   of    t 'Binstrume  nt. 
In   the   langUc:>.ge    of    tlie   Pu  reme   Court    of  I'ass;    "The   proof  must 
be   made  beyond   a  reasonable   doubt   and  so   as   to  overccie   the 
strong  presumption  arising  from  the    sigm ture   and    cecls    of 
the  parties    that   the    contrary  was    the    fact," 

nC TAT  ION 


ITODEP   OE   RGLIEE  JCK-    nR!.!EI;IES   II'   CASE    OE  T.'ISTA-^. 

The    equitable   relief   in   such   case   are  both  af- iiTiat  ive 
and    defensive.      The   principal  afrirnc-tive    remedj'-   is    ratoiijit- 
ion.      Another   equitable   remedy   is    concellation.        T'  is   re.  .edy 
of    reformation   cannot   be    exercise    except    03'  a  court    of  ecuity 
or  by  a   court    he  ving  equity  powers.        In  orcer  that    a  decree 
for   reformation   shall  be    granted   t/.e   -'.istike  must    .3   a  nutti£.l 
one.      But,    however,    if  there  has  been  r   mi^teke   by    one    of the 
parties   acconpanied  by  frrud   of    f  e    other  px^rty,    refo  miction 
may  be    granted,      But    in   such  &    case    it   v/ill  be   based  upon  frr.ud, 
It    is   necessary    t 'x  t    tlie  mistake   be   rnutUcil,    or  the   riistake    of 
one  pj  rty    accaTiranied  by   the    fraud   of   the    other,    dt'ierv/ise 
the   court   would  be  making  a   contr(-ct    for  tl:e   parties.        The 
exception  to    the    rule  of  evidence   heretofore    referred  to   app-lier 
in   such  a   case,    but   to   justif;/    refo  iraa.t  ion,    either   upon  t'ie 
ground   of  mistake    or    fraud  the  parol  evidence  must   be    of   t':c 
clearest   and  most    convincing   sort. 

151   111.    219;37   II. E,    705(111.    Cases    779Ji    33   •'ich.    123:    5C   "  d. 
524:      44   IT.Y.    525(111.    Cases    781) 

Pomeroy  Vol.    II,    659 
107   rass.    290 

I  v/ill   hold  you  responsible    for  the    two   cases    in   the   Case 
Took. 

oOo Oct.    20,    1903, 


VI       EQUITY     JURISPRUDENCE      SR.  19' 

L  E   C   T   U  R  E      '''^I 
oOo 

CMTCELLATIOII 

DICTATIOH 

Y/here   a  transaction  has  not   "been  legally  canpleted  "be- 
cause   the  minds    of   the  parties  hcve    not   net,    as    for  exanple, 
T/here   one   of   the  parties  has   labored  under  a  mistalce,    equity 
has   jurisdiction  to^-rant   the  remedy   of  Cancellation,   Bat 

tliis   jurisdiction  v/ill   not   "be    exercised  where    the    rer.iedy   ct   law 
is    adequate    and   complete. 

Pomeroy,    II,    Para.    870-1;    III    1577 
To\m   of  Venice    v.   V/oodruTf,    52  IT.Y.,    462 
(Illuso    Cases   7S5j 

The  rule  as  to  evidence  prevails  here  the  same  as  in  the 
case   of  reformation, 

MI  ST  a:  j:   AS   APEm:SE   TO    SUITS    IN  EQUITY  PROUGHT   IJX3K   TTT^    SP]:CI  c.-; 
EIC  PEREOlT^ANCE   0?  _^^!W^S ,  "^' 

rTistake  may  be  urged  as  a  d'efense  to  suits  in  equity  for 
the  specific  performance  of  contracts,  either  for  the  purpose 
of  defeating  the   suit   or   in   order  to  modify   the   rel:;  rf    souj::t  ^ 

PICTATIOIT 

Mistake  may  he  urged  as   a   defense   in  equity,    parcicularly 
in  a   suit    for    the   specific  performance   of  a   contract.      The 
remedy   of    specific  p e rf crnnan ce    is   discretiomry  and  vail  never 
"be   granted  where    it   v/ill   v/ork  a   hardship   to   either  party.   Thr? 
principle   applies   in   case    of  mistake,   which  may  of    course,    he 
urged  as    a  defense   to    such  a   suit.      Mistal:e    in   this  case  ma^' 
also  "be   shown  "by  parol. 

37  Conn.    16 

6   Mdc    346-351 

DICTATION 

A  defense   to  a  suit  for    specific   performance    on  the 
ground  of  mistake  may  he   urged  by  way   of  modifying  the    relief 
sought.      If    the  defendant    is  willing  to  submit   to  a   specific 
performance    if    the   agreement    is   modified  as   claimed,    then  a 
decree    in  accordance  with  the  modification  will  be   allov:ed. 
Otherwise   the    suit    will  be   dism.issedc 

13Veasy  Chan.      546 

21   Grat .    23 

2   snnford  Ch.    (.::.Y.)    (298J    329 


I 


VI.  EQUITY      JURISPRUDENCE      SR.      20. 

REPORrATIOlT  /IID    SPJ^CI/JL  PET;EOR'"lAJ.TCS . 

There   is   sriother  question  t mt    should    receive   attention 
in  this    connection:      Can  a   complainant    in  a   suit    for   siiecific 
performance   of   a  written  agreer:ient   allege,    in  adcition  to  the 
ordinary  averments,    trat    there    is   a  mistaice    in   tlie   agreement 
that    is  rautuc  1   or   one   acoompanied  hy   fraud,    and  clxtn^ie   the 
v/ritten   agreement   by  parol  evidence,    and   ohtain  in   the    sane 
suit   a   specific   perf omif.nce    of    the   agreement   as  modified.      Sup- 
pose,   for   instance,    a  client    ccmes   into  your   office   v-nd  ji-.es 
you  a   statement    of  facts  which  v/ould   lead  you    to  "belie-.e   t~.B,t 
there  has  "been   a  rautu-cil  mistake    of    the  pt^rties   to   a  written 
agreement    and  desires   to  have   the  mistake    corrected  and  to 
have  a   specific  performance   of    the   corrected   instrument.      But 
the   defendant    refuse::    to   recorjiize   this    driii:!  and   sa:'s   t}iere 
is   no  mistake   and  will  not   be  bound  by    the   ternB   of    tlie    contract 
There   are    tv.'o  raet^iods  by  wliich  you   can  proceed   for    relief   in 
such  a   case.      You  may    first    go    into  b    court   of   equity  end  file 
your  bill    asking  for   areforn-Htion  of    tJie   instriment,   and  after 
a   decree  has   been  ;;rajrited   reforming  the   in  struiTient ,    and   if  the 
defendant      refuses   to    carry   out    the    terras   of    tlie      corrected 
instrument    or   agreement,    go      again    into   equity  and   file   a  bill 
for   the    specific  pei'formance    of    tlie   amended  agreement.        7he 
question  early   arose    in  England  whether   the  remedies    of  reform- 
ation and    specific    -erformance    could  be    obtained  in   the    same 
suit.        The  English  Courts    said     no,    but   so   far  as   I  ha-e  been 
able    to   observe   they  say  no  v/ithout    ai'j/    very  good    reason  for 
it.    In  a    general   vjay    tliey   vdll    say  this   is   impossible   under 
the   Statute   of  Frauds.        The  parol    evidence    tliat   is   necessary 
to  be    introduced  in   order    to  bring   about   tbe    result    sought 
cannot   be   introduced   in  the    face    of   the  positive   enactment   of 
the   4th   section  of   tlie    Statute    of  frauds  vrhich  provides   that 
any    ccsn tract    or    transaction   in   re:;:ard  to    real  property  m.ust 
be    in    v.riting.      Another   reason  thiit  m^^y  be   urged  hy  the  English 
court    is   that   a  contract    that   is    to  be    reformed  before    it    is   to 
be   enforced   is    certainly   indefinite,    and  a  court    of    eo^uity  v.lll 
never  undertake   to    s^oecif  ical  ly    enforce   an   r^greement    unless   the 
agreement    is   definite   and  certain   tnd  well  understood  between 
the  parties. 

V/hatever  may  be   tlie  reason,    the   rule    is   as   I   have    suggest- 
ed  in  Engla  ;d  and    one   or   two    of   the   American   states,   T,!ass, 
among    the   number.        In  t]iOGe   jurisdictions   Equity  will   never 
grant    the    I'emedy   of   reformation  and   specific  perfonaiance    in 
the    same    siAit. 

But    in  most    of    the   states   in  tliis  country  a  different 
doctrine  prevails   and  the  complainant    in   a  suit    for   specific 
performance  may  allege   and  prove  by  parol   such  a  mistake   in 
the    written   agreement  as   adriits   of   tlie   equitable    remedy   of 
reformation,    and   obtain  a   decree   for   the   specific   performance 
of   tte   agreement   as    corrected. 


VI .  I^  0  U  I  T  Y     J  U  T    I    S  P  P>  U  D  E  r  c  :^     SF.  :;i . 


DICTATION 

Can  v/G    combine    in  one   suit    the    remedies    of  Eef  orr.-u  t  ion 
and    p.peoific   Perfomance?      In  England  and   in    two   or   tliree 
of    the    States    of    t^-ie   Union   it    is   held  thixt  this   cj.nnot   be    done. 
The   general    reason  bein.e,'    that    the    statute    of   7rauds   ";ould  there- 
by be   violated,      p.ut    in  most    of    the    states   this  combination   of 
remedies    is   allowed,    but    t'e    evidence   by   wMch  t]ie  jaistake 
is    r-hown  must   be    of   the  most    clecr   and   cunvincint^  sort. 

English  r.ule  : 

7  Vos.    Chancery   211 

102  ^:ass.    24(Illus.    Cases   247; 
10  lie.    80 

/raer  ican  Rule  : 

4  John.    CJiancery   144-8 
li  II. J.   7i:ouity  43 

14  i:.H.    175 

8  Kump.    230 

15  !'o.    106 

30    111.    226(    111   Cases    241j 

Study  the    t\v.)   cases    in  the    case  bco>. 

If    the  proceedings   for    tlie   reforma,t  ion   aiid    enforcement 
of    the   written   agreenerit    is   based  upon  fraud   instead   of  mistal:e 
the    result   v;ill    v^ry   in   different   jurisdictions   in   the    same 
manner   that   it    varies   when  the   proceeding   is   based  upon  mistcJce. 
In  the    Code   estates   there   can   be    no   question   about    the  propriety 
of   a  plaintiff    seeking  in   th^    sane  proceeding  t  ]:ie  r  emedy   of 
reformation  and    the  remedy   of    speci/^ic  performance.      Indeed,    in 
Code   qtates   the  plaintiff  may  jo   further   in  the    same  proceeding 
than  to  simply   correct   and    tlien  specif icrlly   enforce   as 
corrected,    he   m.ay    obtain  the   legal   remedy   of   a  money  judgment 
for   the  breach   of    t)!'.-    contract    or    r^-reement    as    corrected. 

Most    of    the   questions    in   regard  to    reformct  ion  and  re- 
formation  accompanied  by    S]">ecific   performance   arise   corc^rning 
contracts    that    are  r  equired  by  the    st£'tute    of   '.Trauds   to  be    in 
writing.      In  tire    first  place,    by  means    of  mutual  mistake   a 
contract   may  have   been  made   to    include  within   its   tenns   certain 
l^nds  that   were   not    intended  to  be    included.        The    general   rule 
is    in  this    country   that  parol  evidence    is  adinissible   for    the 
purpose    of   reformi}!^;   this  kind  of   an   agreement.      The    reason 
is   that    the   statute    is   not    A-iolated  because   no   contract    is 
made  by  parol  between  the  parties,    tlie  e  ffect    of    tlie  parol   evi- 
dence  being   to    take   the    land   out   of    fre    v,ritten  contract   t].at 
has  been   included   therein  by  mistake   or    fraud.      It    simply   cuts 
dovni   tho    contract. 


VI.  EQUITY     J  U  E   I    S  P   R  U  J,  E  JT  C   E      SIl.  22. 

In  the    second  place,    "by  r.eans    of  a  Tnutuo2  mistake,    a 
written   contract   niay   omit    certain   lands   that   were    interided 
hy    the  parties   thereto   to  "be  included  within   it.      In  a  cose 
of   this   kind,    the  parol   evidence,    if   edmittedjV/ould  go   to   show 
that    the   lands    should  "be  included  within   t}.:if5    contract    and  the 
reformation  would  "be   asked  that   vrould    extend  the   contract   to 
tl'iese    laiidsc      cjorae   courts  have   refused  relief   in  cases   of 
this   kindo      pome  very  respectable   /uner  ican  Courts,    and  the 
English  Courts    generally,    have  refused  to   give    relief,    "basing 
their   refusal    on  the    ground  that  the   rtatute   of  frauds    reqv'.lres 
a  writing  to   create   an  interest    in   lands,    and  that  here    is   an 
attempt    to    create   an  interest   v/'ithout    it.      The    effect    of  ;.'arol 
evidence,    if   ad^nitted,   would  "be   to   affect   t?ie    iand   t]r-t   is  not 
mentioned    in   the   contract.      "Ihe   leading  case    is      Glass   v. 
Ilulherto 

But   many   courts   of    recognized   standing  hold  tliat  tliis 
evidence    is   admissihle,    "both  v.'here   the  e  f feet    of   the  p.-rol 
evidence   will  "be    to   cut    dov.-n   the    contract,    and  also    to    a:'.d   to 
it.      Eurtlier,    such  relief  may  "be  granted  alt'iough  the  agree- 
ment  "by    t}Te    statute   of  Erauds   is  required  to  "be    in    v.riting. 
These   courts   rely  upon    the   doctrine  tliat    the   statute   of  irauds 
sliOuld  not   be   made    an  instrunent    of    fraud. 

If    there   has  "been  a  part  perf  onnan-c ;    if  the  parties 
have   gone    into   possession  and  put    valu£5,"ble   irnprovemrp'^s  upon 
the    land;    t'len  not    only    t.bB  llasso   Court-:.;    but    even    tl-j  Englisli 
Courts   T/ould  permit   a    reformat  ion  bas-ed  upon  parol   evidence 
that   the    lands   had  been   omitted    from   the   agreer.ient    by  mistake, 

DICTAT ION 

Questions    connected  vath  reformation  by  parol    e-v  idence 
most    fl-equently   arise   in   case   of   agreer.ients   that   are    requirc-d 
by   the    statute    of  Erauds    to  be    in    v.riting.      In    regard   to  such 
agreements  two   states   of  facts  may   exist    (1)      Ey  mistake   lends 
may  have   been   included   in  the    contract   tliat   the  pait.i;.'.s   did 
not    intend   to  include. 

Under   those   c ire uia stances    th.e    courts  all    agree    tl'-at  iihe 
mistake  may  be   shown  by  parol  because    tlis   effect    is    sii::ply  to 
cut   down   the    contract,   whidi    they   argue    is  not   the   making  of  a 
contract   within  the  provision   of   tl^e   ctatute   of  Erauds. 

(2)      But   through  mistake    lands  may  hjT'.ve    ceon  omitted  from 
tlie    contract   tlut    the  parties   intended  to  include.      In   some 
states   the   courts  .following  the  English  decisions,      hold  th^t 
xinder   such  c  ire  uustcoices  parol   evidence   is   not   c-dmissible   for 
the  reason    tis-t    the    effect  would  be   to  make    a   contract   by  parol 
in    regard   to   land.      Other,    and   tte  most   of  the  Asierican  Courts 
hold  that   file   statute    of  Erauds   furnishes   no    objection  to    the 
use    of  parol   evidence   \inder    snch  c  ircujnstan  ces,    for   otherwise 
fehe      statute  would  "be  turned   into   an   instr-xient    of   fraud. 
In     favor  of  Jurisdiction: 

30  2I.V/.    278(111,      cases   237) 
101  I^ich,    577 

— -oO— - 

Oct.    27.    1903. 


VTI,      EQUITY  JURISPRTJEENCE   SIT.    ^3. 

LECTURE  VII. 

-~-oOo--- 

58   N.}1„    386(111.    Cases   239) 
30   Ill>   228    (111.   Cases  241) 
Stnc^y  carefully   those  three    cases o 
Cci.i.trao 

102  ifessc    24(111.    Cases   247) 
10-i  K.   Carolina   15    (Illc    Cases   255) 
In    case   ofp.r^rt  perfoiinrnce    of    the   contract,    sucli  perfom- 
ance   including   thy   o?iitted  lands,    all   courts  hold  tint   parol 
evidence   If;    c;'i;i' ssJ.ols   to  correct   the  mlstalre,    and    t.iat  the 
Statute   of  iT^uds   caaiaot   "be      urged  as   a  defense « 


Y/e  will  now  pass     to    the  next   crcmid   of    relief   in  ."Jquityj 
namely, 

F  E  A  U  2. 

One    of  the    occasions   for    the   estaollshment    of   a   separate 
aourt    of  cqvity  j.n  "'r.-land  was   that   there  inic ht   be   aseparate 
tribunal   t  !>:■':'  o  oald    a^ial  with  fraud   in   its   various   f-j.-mse    Origin- 
ally   the   law  ccn.;rts  had   little   jurisdiction  over  matters   of 
fraudo      It    v""a3    only   after  the   introduction  of  assumpsit,    case 
and    trover  th?.t  they  hSf^an  to  assume  jurisdiction   in  raatters 
offrauiic      it    is    tiiroasn  the   action   of  Trespass   on  the    case 
that   th3  Ls.iif  Courts  r'ave   developed  a   -very  large   jurisdiction 
over  rri£.tte:-s   oflr-?.'-j^.(, 

It   haa  been  iu  i.d    in  England  that   v/it  h  one    exception  the 
juriF diet  ion  of  equity  exists   in  every  case   of  fraud,      In 
England   the   qaoation  is  not    whether  the  jurjUvdiction   e::iGt3, 
"but    wl;--thf!r   it    shou.Ld  he    exercised,    this   depeudin:;  upon  the 
Circimi  •■.  e.nces.  The   single  exception  in  England   is    tl:at   of 

canciT.i  :■  f'.£  vills    obtajned  hy   frauds      It  has  "been  held  that 
courts   of  aqidtyhavg   no  poiiier  to   entertain  a   suit    to   cancel 
a  will   obtained  by  fraud*      The  proper   court    to    entertain   su.ch 
a  suit    is   the  Probate   Court    in   the   United  States  and  the  Ecc- 
lesiastical Courts    in  England. 

The  English  doctrine   in   case   of  fraud   is  not   recognized 
to   its   full   extt.ot    In  this    country  as   a  practical   doctrinec 
As  you  become  more   ffimlllar  with    the    equitable  doctrine  ccn- 
cerning  fraud,    yea    t.u.I  i  :lnd  that   vi  th  us   the  exercise   of  equity 
jur Isdict  j:;a  oust   d>--,uy..<i  upon   the    circumstances   of  each  partic- 
vLLar  case   to  a   gr-.-'av.e/fcl.ent »      It    is  possible   that  the   equity 


VII.  EQUITY      J   U  n   I    S   PI.   U  D  E  N   C   7.      SR.         24. 

courts   in   the   United   states,    v/here    the  jurisdiction  lias  not 
"been   circ  unscrib  ed  by  strtute,    would  hold   t:r.t    equity  h^s 
jurisdiction  in  theory  of  all   cases   of   fraud,   hut    in  practice 
the    la.v;  courts   exercise   jurisdiction  over  very  inary   cases   of 
fraud   that    the    equity   courts    never  attempt    to    cover   at    tlie 
present   time.        The  decisions   of   the  different   courts    in 
this    country  are    some\7hat    at   variance   upon   t/E    subject    of 
fraud.      The   exercise    of   eqvdt  y  jurisdict  ion  in    case    of  fraud 
must   depend  to  a   grer.textent   upon   the   circxnstances   of   each 
particular    case,    and  tiie  nr-ture    of  the  remedy  depends   u   on 
v/hct   v;ill   do  justice  betwee;i  the  parties.   As   a  matter   of  faCt, 
thee  quity  courts    in   tliis    country  have   abandoned   to   tlje    law 
courts   almost    all   their  jurisdiction   in  matters    of  fraud  widch 
the  English  Courts    of  JCquity  held   rested  entirely  within  the 
dominion   of   equity.  '-'herever     a   court    of   law  may  jive   full, 

adequate   and    cor.iplete   relief    on    t'le    ground   of   .Craud,    a  party 
will  never   go    into  a   court    of  equity. 

At    the  present    time    courts    of    Ivsr  furnish  a  number   of 
remedies   that   nay  be  inovked  to    relieve   the    oefrauded  rj  rty.   A 
defrauded  party  may    treat    the   transaction   as    rescinded  end   re- 
cover back  the  monej'"  obtained  from  him  fraudulent];:';    or   a  de- 
frauded pcrtymay   suffer  the  transaction  to   stand  ?.  nd   by  a  pro- 
per  action   recover    dcUiiages   which  he   has    sustained   on  accou:it 
of    the    deceit   practiced  upon  him.      ?rEud  may   also   be    introduced 
as   a  defense   to  actions   ot    law.        P/.t   all   kinds   of    fraud   can- 
not  be   reraidied  by  a    ccm?;ion    law    c.£;tion,    and   in  rric.iZ'     cases   the 
capacity   of  the    common   lav;  courts    to  def  1   with   fraud    is    in- 
adequate.     The   remedies   furnished  by  equity  in   cat -5    of  f  raud.. 
are  broader  than  tSiOse   furnished  by   tie    coimnon   la\/cour'ts. 
Equity  has  power  t  o    conform  its    remedies   to  meet   the  demands    of 
justice.      And    in  man;/    cases   the    equitable   remedies,    on  account 
of    tlieir   elasticity,    are  more   readily  adapted  to   cases    of  frc.ud 
than   are    t'e    legal  remedies..      In  administerin/v   its    remedies 
in    case    of  fraud    eqiuty  acts   with  tj^e  end  in  viev;   to  restore 
the  part  y  d  efrauded  to  the   caidition   in  \,'hlch  he  was   before 
the  perpetration  of   the  fraud.   A  court    of    equity  when  it    once 
obtains  jurisdiction   in  a   case    of   fraud  nay   grant  relief  v.-hich 
is  purely    equitable   in  nrture   and  where   the    circumstances    de- 
mand may    grant    relief  pecuniary   in  nature. 

DIG TAT ION 

One    of  the    reasons  for   the  c  reat  ion  of   a  Court    of  Equity 
was   that  there   miglit  be   a  tribimal   tliat   could  fun  ish  adequate 
relief   in    case    of    fraud.      Originally    the    coimion  law  courts   had 
practically  no   jurisdiction   in   cases^     of  fraud.      T2iis   was   the 
case   until  the    introduction   of   the   actions    of   assvjupsit,    trover 
and  trespass   on   the    caser-the   equitable    actions    of    the  lav;. 
Since    that   tirae    the  la,'.v  courts  hcive   developed  a    "very  large 
jurisdiction  in    case    of    fraud.        But   in  tr^eory,    in    Ing land   at 


m.  EQUITY     J  U  R   I    S  P   R  U  r  E  IT  C   E.    SR,  25. 

any  rate,  this  law  jurisdiction  has  not  taken  away  the  equity 
jurisdiction.  It  might  be  exercised,  although  as  a  rule  it 
will  never  be  exercised  if  there  is  t  full,  adequate  and  can- 
plete  remedy  at  law.  In  sane  states  the  question  is  simpli- 
fied because  the  le/^jislature  in  confei-ring  jurisdiction  upon 
the  equity  courts  .';  has  ©  nferred  that  jurisdiction  to  car.es 
in  which  there    is   no  adequate   remedy   at    lav/. 

The    action  of  Deceit   a  It'iough  legal  in   fonn  is   really 
equitable   in   the   result    tlxi  t  may  be   obtained  thereby  and   t Ir  o ugh 
it  nmny   cases   of  fraud  ma^'  be   reached.      But   wherever  you   seeh 
relief  pure   and   simple   on  the   ground  of  fraud  you  may  properly 
go   into   a  court   of   equity.      Fraud  in  equity  has  a  wider   sigr.if- 
ication  than  it   has   at    law,    and  the  remedies  furnished  by  tl:e 
equity  court    in   very  ma. ny   cases   are  more    far   reaching  and 
effective   than  are  the  remedies   furnished  by  law. 

The  principal   equitable    remedies  ere    tae  f ollowin':: 
The  Remedies   of  Reformation,    Cancellation  and  Specific     En- 
forcement,     The  affirmative  remedy  of  Cancellation   is    one   that 
is   frequently   resorted  t  o  in   case   of  fraud.     But   in   r/  eaking 
of    cancellation,    I    should   suggest   that    an  instrument   ;,111 
never  be  cancelled   if    the    equity  court    sees  that    there   is   a 
complete   defense   to   it    on  tlie    law   sice   of  the   court.      Then  v;e 
have  the   affirmative   relief   of  Ref oriU'.tion  by  v/hich  a  contract 
may  be  raexle    to   conform  to   the  agreement   of  the  prrties  v/here 
thcugh  fre^ud  the   written  contract    does  not   represent   iJne   real 
agreement   of   the  parties.      Then  v/e  mry  have  the   affirnrtive 
relief  of   Specific  Enforcement,    tlie  effect   of  which  is   to  put 
the 'parties  back   into    the  position   tiiey   occi^led  before   the 
wrong  was    committed.        There  :■  re   also   the  incidental   rem.edies 
of  Injunction  and  Receivership,    also  an  Accounting,    sometimes 
equity  gives   a   simple   decree   for  carnages.    If  a  party  has   ac- 
quired property  by  fraud,    equity  may  ca^^pel  him  to  reconvey 
the  property   to    the    grantor  and  until  he    does   reconrey,    equity 
may  treat   him  as   a  trustee   for  the  benefit   of   the  party  "ho    is 
entitled    to  the   products    of   the  property. 

Then  too    fraud  may  always  be   urged  as    a  defense    in  equity. 

It    is    desirable    that  you  should  lia.ve  an  answer   to   the 
question:   Y.Tien  will  a   od  urt   of    equity  in   cases   of    fraud  take 
jurisdiction,    and  v/hen  will    it   turn  cases   of   fraud   over  to   tlie 
law   side   of  the  court.      It   will  be    impossible   to  give  an  answer 
that    will    serve   in  every   case   at   need,    because    it    is    impossible 
reconcile  the  varying  decisions   that   we  have   upon  the    subject. 
It    is   only   quite    general  rules   that   can  be   given. 

DICTATIOIT 

The   end  that   equity  has  properly   in  view  in  administering 
its   remedies   in  case   of    fraud  is  the  putting   of   the  pt.rties 
back  into    the  position  that    t}iey   occupied  had  no   frcud  been 
committed. 

Continued   in  next   Lecture. 
._oOo--  Oct.    27,    1903. 


VTII,    EQUITY  JURISPRUDENCE.  SR4       26. 

LECTURE  VIII. 

.-.»„oOo 

(COITT'D   l^RO'T  LST    IJ^ICT ) 

At    the   close    of  the  last    lecture   I  vras   attempting  to   clear 
up-,    the  matter  of  jurisdiction  of   the  equity  courts    in    regard 
to    cases   of   fra^xU        I  hid    started  to    sug^-est   and    to  fom.ulata 
two    or   three  propositions   that   would  he  of  general   application 
and  general  help, 

GEF^JRAI,  PPJHCIPLES   GOA/EPJOKG   JURISDIGTIOII. 

(IJ      If   the  estate,    right  or  interest   that  has   "been   in- 
vaded is    equitahla,    tho   j  ur  :".sdict  ion   to   remedy   the    conL'oquent 
wrong   is  exlusively   in   eqirlty^    and  mil  alv/ays  he  exercised 
whatever   the  nature   of  the  relief    soughto 

(2}    If    the    estate,    ri^ht    or   interest    tTiat  lias  heer  affected 
hy   the    fraud   is    legal   and  the    consequsnt   vrongcan  he  /cached 
hy   a  remedy    tht.t   is  purely  equitahle;    t  ]je   jurisdiction  to  grant 
th^t  relief   rests    in  equity    exclusi  vBly.      But   a  court    of   equity 
will   not    generally  he  granted   if   the  party  can   get    full   r^elief 
ct    lav:.  Por   example    if   a   contract    is    ohtained  hy    fraud,    the 

wrong   that  has    res  lilted  can  he    reached  through  the  purely 
equitahle  remdy  of   canoe  llat  ion »      But    although  equity/  ha.  s  juris- 
diction   to    cancel  t  te    instnmant,    a    suit    forthat   purpof^:£      v/ill 
not   he  sustcinad  v;hen   the   fraud   can  he   set   up   as  a   defense   to 
an  action   on  the   contract,    and   tl-Ere   are   no    special    c:rcx:a- 
stances  which  prevent    such  defense   from  heing  a   complete,    ad- 
equate  and  certain, 

DICTATION  ' 

(2j      If   the    right,    estate,    or   interest   that  has  heen 
affected  hy   fraud   is   legal    and  tlis    c  onssquent  wrong  can  he 
reached  hy  a    remedy   that    is  purely  equitahli,    ty.e   jurisdiction 
to   grant  tliat    remedy  rests   in  equit^^  exclusively.     But    t}:e 
remedy  will   not    ,;Bnerally  he   granted   if   the  pc  rty  can   get 
full   relief  at    law.      In   order    that  it  may  he   graiited  there 
must   he    sp^^cial  circum<=^.tances   calling  for   equitahle    inter- 
ference o 

If   the   ri^t,    title   or  interest   which  has  "oeen  affected 
by   fra.ud   is   legal   and  tlie  re    is  a    remedy  in  equity   for   t>^ 
wrong  which  is   pecuniary  and   in  effect    legal,    the   jurisdiction 
of   equity   over   the  matte i"   is    concurrent   with  the   jurisdiction 
at    laWv      But    ^che   equity  court    will   never  take    cognizance    of 
the  matter  where   full   relief   can  he  h?  d  at   lawc 

The   whole    suhj  act   can  he   sunimed  up   in  the   single    statement: 
In  cases    of    fraud,    ths   jurisdiction   of  equity  to    grant  purely 
equitahle   remedies  will    not   he    exercised,    and   the  concxorrent 
jurisdiction   to   grant  pecuniary  relief   should   not   he   invoked, 


VTII.  EQUITY      JURI    SPPUDE  IT  C   E.    SR.  27, 

in  any   case  where   the  legal    remedy,    either  affirmative   or  de- 
fensive,   will  "be    in  tvll  particulars   stieauate  and  complete, 

Pomeroy  Vol.    II,   Para  910- 1.\ 
Bigelow  on  Fraud,    page   41-62.  .       . ^• 

Eaton   on  Equity,    pp   283-5. 
I   T/ill  give   you  three    cases  which  I   wish  you  to   read: 

52  NoH.  60$ (111.  Cases  258) 
119  U,Sc  347(  111.  Cases  261J 
31  ?:ich.  367(111.  Gases  264) 

Era-'ld    :in  Equity   is    divided   into*. 

(1)  Actual,    and; 

(2)  Con?tructive   Fraud, 

We  have   actufi,l   fjraud  where    through  a  false   represent-  tion  of 
any  kind;    or  through  fraud-ulent    concealment,    a  party  has  "been 
so  pltced  thiat  he  has   lost    either  contract   ri^ts,    property 
rights   or  personal  rights,    tha.t    it   would  "be   against    eq>.-.ity  and 
good    conscience   to  remedy <,      Actual   fraxid   cmsists   of  acts   of 
direct    imposition  upon  the  party  who   has  sTiffered. 
C'"ristruct ive    fraud   is    something   that  the   law  imposes   under 
ca.'taLn    circumstances   ejid  it   may   exist    even  in  the   absence  of 
any   intention  to    deceive   on  the  part;c     of  the  person   giiilty. 

If  we  examine  these  acts  in  detail  we  will  find  tLrt  they 
consist  of  fraudulent  representa,t  ions  and  fraudulent  conceal- 
ments, and  the  whole  subject  of  actual  fraud  in  equity  may  "be 
dlbcassed  "by  an  examination  of  what  constitutes  fraudulent  re- 
presentation and  what  constitutes  fraudulent  concealment,  and 
that    is   what    I    sha.ll  next  proceed  to  do, 

DIG TAT  ION 

Actual  fraud  exists   where  a  party  has    suffered  from  acts 
of   imposition,    v^here    there   has  "been  positive   wrong  doing,    altlio 
arising   in  many   differnt   kinfs   of   transactions,    actual  fraud 
consists    in    reality   of  two   forms   only,    namely: 

(1)  FALSE  repeesei;tation; 

(2)    }?IL'aT)IILEiTT   C OIJ GEAnO^ilT  . 

False   or  fraudulent    representation,    in   order  to   constitute 
fraud  must    contrin   certain    elements  c      And    in   order   to   discuss 
tMs    subject    fully  and    intelligently,    it    is   necessary  for  us 
to   refer   to   these   differnnt    elements.      In   the    first  pierce, 
the    false   representation  must  be    the  aff imi'ation  of    sa^e    fact, 
and  not  amere  matter  of  opinon  or  judgment.      For   example    let 
us    s\;5)pose   that   the   subject   matter   of  a    transaction   is  a  piece 
of    reale  state   that   is  to  be  wnveyed  and   the    vendor  gives    it 

as  his  judgment   that    the   estate    is   v/orth  forty  dollars  per    rcre. 


\t:ii.        equity    j  u  r  i  sp  r  u  r>  eii  c  e.  oR.  28. 

Let   us  sup'Ose   t  ]ii  t     ohe   land    is    not  worth  more    thar..  twenty- 
dollars  an   acre.      Is  that    such  an  aff irr^t  ion   of  a    fact   that 
it   '.voulr    be  a  haris   of   an  action  to   set   aside   tlie    transaction 
on   the    .'Toimc'   of  fraud.      No.      That    is   e,  mere   ercoression   of   en 
opinon.      The    otl;er  -party  has   an   oprurtunity   to   t-ind   out    the 
ti-uth  of    the   statement.      But    suppose  the  pt.rty    says   he  ]ic,s 
"been  offered  forty  dollc.rs   am  acre    for  the   land.        There  v/e 
have   a   representation  of   a   fa^jt ,    end   if   such  representation 
has  "been    relied  upon  and  hfs  been  materi;.,l   in  indue  in::  the 
party  -to    onter   Jnto   the   transaction  it  v/ill  dive    equity  juris- 
diction to    set    aside   the    transaction  aside    on  the   ground  of 
fraud.-  If   the    stc-tement    is   of    saiethins  t  ^at  may  take  pl^ce 

in    the   future,    uncer  those    circumstances,    the    statenent  as  a 
rule   "•"'ill  be    rerc  rded  hy    the    courts   £'.s   .n  ex   re.  sion   of  an 
opinon  and   virill  not   be   a  basis   for  rn  action  to   set   t'j.3  trans- 
action  asice.   Y/herever  theprq:)erty   js    equally   open  t  ;>   the    in- 
spection  of  both  parties,    no  misrepresentation  apparent    on 
inspection,    would   cvoid    t-ie  contract.      If  the  party  so  making 
the   representr  t  ion  is  better  able  to   £ive   an   opinon  aixd  to 
kno?/  the    facts,    if  he    is    ::o   situated   t?iat   whit   he    says   v.ill 
particularly   influence   the    other  party,    under    suda  circ^ua- 
atances,    it    vrould  be    the   a'firriHtion  of  a  fact,    and   if  lintrue, 
would  give   a   ri^ht  of   action   in    equity   on  the    gromd  of   frau.:, 
if  an   equitable  reraedy   should  prove    to  be   the  proper   one.  ?or 
instance,    here    is  a     man  who   ov/ns    lands   in   the   state   of  .'"icho 
and   County  of  Ylashtenav/o      Ha   resides    in  tlie   State   of  ''enn.   and 
has   never    seen  the  Icmds  and   knows  notiiini;  of    their    value.   He 
has  an  agent  here   who    takes    care    of   the  property  and    send 
him   the    rents   and  progitSc      A  party   vho    o\-;Tis   lands    close   to 
t'ls  piece   of  property  desires    to  purclxi&e   t  "lis  land,  lie   goes 
to    the   agent   and  he  names   a  price    vhichhe   says    is   too   high, 
rie    then   goes    to  the   rotate   of  Pao    and  tells   the  party  v;l;o   owns 
tlie    lend  tliat   the    sa;ne    is    in  a   ruii  dov/n   co  n  cition,    tl'iat  land 
in  that    vicinity  has    c.eprecicted   in  Vcli;s,    thst    this  property 
is   near   the  city   of     B  and   that    land   in    that   vicinity  has 
depreciated  greatly'  because   the   Court   house    is   to   be    removed 
to   another  tovm,    and   tlx.  t  he   v.lll  pay   a   certain  price   named, 
but   much  lower  than  the  price   named  by    the  agent,    and  nuch 
less   than  the    actual    itlue    of   the  property,      h'e    says   t:iat  he 
v;ill  pay    tliat  price,   bat    that   it    is  mere  matter  of    senti   ent 
that    induces  him  to    dOo      He   says    tLi-'t   his   wife   v;as  born  upon 
the  propety  and    cesires   him  to  purclnase    it,      and   it    is    for 
his  wife's    sake    that  he    desires    to   purchase.        The   party  then 
sells  the  Itnds   to  him.      If  these    statements  h?d  been/ace    in 
the   County  of  V.'ashtena?/  where    the  landv.as   situated,    tJie  pc  rty 
would   nothrve   been  justified   in  relying  upon  them,     Eut  made 


^/III.        EQUITY      J  U  R  I    S  P   RU  D  ^  ::  C   E.      SR,  29. 

uiir-er   the    c ircvmstan ces   that  I  have    cuccested,    the    court   vei-y 
properly  held  t}-E.t  they    v^'ere    a  "oasis   for  a  proceedin,:,  to 
set    the    conveyr'.nce   as-ic'e    on    the  g  rouno   of   fraud. 

EIGTATiOl-T 

ESSEFPI/J.  ELPIU^IITS   0?  A   l^ALSE    REPRESEITTATIOIT. 

In    the  first  plc.ce  ,    tl?ere  muct  "be    tr^  affirmation  of   sane 
fact,    and  not    a  mt're  matter   of   opinon   or  judgment, 

Pcmeroy,      Vol.    II,    87  7 

Blsphara,    207 
Any    statement    in  relet  ion  to    the  past    is,    as   a  rule,    tlie 
statement    of  a    fact,    hut   ar;^''    statament   as    to  the   future  \z 
in  connection  v/ith    the  subject  mctter  of   the    transaction  is, 
as  a  rule  J    the    stctement    of   opinon  merely.     Y"ienever  property 
is   equally  opezi  to  the    inspc-ctiori   of  "both  parties,    nv    •  is- 
representation  as   t o  a   fact   apparent   upon   inspection  will 
avoid  tJie  contract  o      Otherwice,    however,    v/here   one  of   the  part- 
ies has   s:;iperior  opportinit  ies   for  knov/inc   as  t  o  the    condition 
of  the  property. 

103   Hasso    382 
Ordinarily  the   e:>q^ression   of  a  mere    intention   is   not 
"binding,    and  a  mis-statement    in  th£,t    re^jard  v/ould  not    con- 
stitute  fraud,    but   if   one  in   order   to   influence   unother  asserts 
that   he   hrs   a  present    intention,    when  he   has  not,    in  fact, 
such  an   intention,    tlx.t   v/ould  be    regarded  as  a   false    ctatemeut 
of  fact  ,^ 

Law  Rep o    29   Chanc,   Riv,    459, 

--■-oOo-"- 

Nov.    2nd,    1903. 


IX.     EQUITY   JURISPRUDENCE.   SR.      30. 

LECTURE  IX. 
oOo 

This   affirmation   is   usvic;lly  made  by  motns    of    lan:;uai:,'e 
v;ritten   or   spoken,    althou,;h  it   is   not   necessarily  so.      It  may 
be   by  means   of   the    conduct   of    theparty.      Under    such  circum- 
stances,   the    court   v.dll    grant    relief   the   same    as    thou   'i  the 
fact  was   vertally  statedo      As    for  instance,    a  fraudlent   rep- 
resentation may    consist    of   fruaudlent  exp  er  iements ,    as   in 
connectiox:i  v;it  h  a   ontract    cd  ncerning   rpatent. 

A  false    representation   cannot    be  a  mere  matter   of   opinon. 
Trie    law   at-suraes   t '^at   parties   to  a   transaction  are   equtlly 
competent,    if  not    laboring,   underany   dsability,    to   f  orr  e.n   opi.:on 
on  the    subject   matter   o.      :   of    the  trc.nsaction.      Thus   £.  ;.]an  has 
a   ri,';iht    to  praise   a   commodity  tiifit  he    is    offering  forsLle, 
provided  he    confines   himself   to   a  mere    expres.sion  of    opinon. 

The  expression  of  an   opinon,    under    some   circumstr.nces, 
may  amount   to   a  fraudulent    representation,    as  v;here    for  example 
the  party    is   an  expert    in  regard  to    tiie    subject   matter   of   the 
transaction.      Under   sudi   circumstances   the    expression   of  an 
opinon  would   be    equivalent  to  tlfi      af f irriiat ion   of  a    fact. 

DICTATION 

The  mere    expression   of  c  n  opinon  would  not   be    ^Tounds 
for   relief   in  equity.      But   v/here   the   expression  of  an  opinon 
is  a   fact  material  to    the  transaction,    tlren  the    statement   that 
such  en  opinon  exists   is  the    affirmation  of  a   fact.      Illustra- 
tion:     If  the  party  to   the    transaction  v/ere  en  exj-^ert   his   opinon 
may  be  a  material  fact. 

Pomeroy,    Vol.    II,    para.    878 
30   N.J.    Eq.    82 
23  nich.    99 

The    representation  mupt   be  made   with  the  design   of   in- 
ducing th.e   other  party  to  act.      If   it   is  made    idly  and   inci- 
dentally and  vrithout    sjny  expectation   that    it   v/ill   induce   the 
other  party  to   act,    c  lthou,:;h   the    representation  ma y  be   false, 
it    cannot   be   used  as    a  basis    of   an  action  to    set    the    trans- 
action  asire   on    the    ground  o    fraud.    The   desi^^n   of   the  party 
making  the    renresentation  to    incuce  t^nother    to   act   may  uiider 
certain    circumr.tances  be  presumed.      If    the    representation   is 
of   such  a    c/aracter  that    it    v.-ould   naturally   induce   any   ordin- 
ary person  to    enter  upon  any  particular    line  of    conduct,    and 
is    in  fact    followed  by    such  conduct    on  the  part    of    fie  person 
addressed,    then   it    will   be  presumed   tnat   svch  representation 
was  mace  with  a  view  to   indiicing  tlit^  t  person  to    act   lias  he 
has    acted. 


IX.  E   Q    TJ   I    T   Y      J   U  R    I    S  P  RU  T   E  N  C   E   SR.  31. 

riCTAT  ION 

(2)  The    represenU'.t  ion  must   "be  mi;.de   with  a   design   of 
inc-'ucing   the    other  party  to  act. 

■Pomeroy,    ""■qI,    II,    para.    879. 

33   Tie,    17 
But     ohe   design  may  "be    inferred  where   the  natural    conse- 
quences   of    the  representation  v/ould  "be  to   inc'uce   an  ore"  inary 
man  to  act, 

83  IT.Y.    31 

Pomeroy  "''"ol.    II,    para.    880 

(3)  The  representation   in   order  to  "be  fraudulent  nur.t   "be 
untrue.      If    there   are    several    statements,    all   of   v/hich  have 
induced   action  and  any    one  of    th.em   is   untrue,    the   tra.iiu.ction 
ma:y    "be    set   aside o 

Pomeroy  Vol.    II,   para.    880-2. 
The  fourth   essential,    v.-hich   is    fre   most    iraportrn-:,    has 
to   do  with  the   knowledge    or  "belief   of  the  party  mal'in:;  tlB 
statement  c        There  must   "be   a  knowled^^e    or  "belief   of  t];e  party 
making   a   statement   upon   Vihich  another   acts,    and   \:hich  ".> roves 
to   "be   untnie  ,    as  t  o  its   falsity,    in   orc.er   tliat  his    stc.tement 
may   "be  regarded  as   a  false    representation  and   the   transaction 
avoided   in  a   court    of    eqiut  y,      "I-Iow   accoraint,;    to    sane   auth.oiri- 
ties   there    is   a   difference   "oetv.'een  the    theory  of  equity   in 
regard  to   tliis  matter  and   t  lie    tlaeory  "by  v/Mch  the  lav:  courts 
are   governed.    If  aparty  makes   a    statement   v/hich  he    kno;/s  to  "be 
untrue,    and   it  possesses   all    tiie    other    elements   esseiitial  to 
a  fraudulent   re  're  sen  tat  ion,    there   can  be   no   dou"bt   "but   that 
the    transaction  ma.y  "be    set   aside.      2ut    the    facts  may  shov/ 
this:    tliat   the   part  y  mtukin-   the    strtement  does   not    know  any- 
thing a"bout    tlB    su"bj  ect  matter  of   the   transaction,    and  he  makes 
the    statement   recklessly   in    regard   to    it   without    even  believ- 
ing  it   t  0  "be    true.      Under   svch  c  ii'c  un  stances   is  he   guilty  of 
fraud?        Uncer    such   circ  un  stances    it    would  "be    regarded  as 
fraudulent  "both  in   lav/  and    eouitj''.      Let  us   suppose   t}iis state 
of   facts:      A  prrty  makes  a    representation  of  a    fact,    not    in- 
tending  to  mislead  the    defrauded  party,   "believing  it    t  o  be 
true   although  he   does   not   absolutely  knov/   it    to  be    true,    but 
has  no   sufficii'^nt    grounds   for  reacMn...  such  a   conclusion.      T-'e 
would   not  m.ake    sue  h  a   statement    if  he   t}x)ught    the  p<  rt  y  would 
be    defrauded    thereby,    but  he   makes    it    recklessly  and  v.lthout 
regard  to    the    consequences.      Under    -ucli  c  ire  imstances ,    if   the 
statement  turned   out   to  be  untrue,    v.-ou].d   the   party  be    guilty 
of   fraud?      In  some    of    the    states    such  a    statement  v;ould  not 
be    regarded   in   Iblv:   as   f  raudmL  ent,    but    it   would   be    regarded 
as   fraudulent   in  equity,    and   I  may    say  that   generally    in  this 
country  and   in  ringlajid  a  statement   of    that  kind  -jould  be   re- 
garded  vs   fraudulent    in  eqiuty.      According  to  s  ffie   authorities, 
there    can  be   no    fraxid    et    law,    unless   tJiere    is   a  moral   obliqiiity, 
v.4iereas    on  the   equity   side   of   tlie   court,    according   to   all 


IX. 


EQUITY      J   U  R    I    S  P   R   U  D   E   II   C   E.    SR. 


aut'orit  ies,    there  nir^y  be 
part    of    tlie   person  guilty 


fraud  without   any   intention   on  the 
as   in  the  case    last    stated. 


DICTATIOH 


(4j  The  fourth  essenti  al  element  has  to  do  v/ith  the 
knowledge   and  "belief    of   tlx   p.  rty  Kiakin^;  the    statement . 

V.rhat   must    be    the  knowledge    or  belief    of    the  pcrty  mkin^ 
the    statement    as   to    the   falcity   of  his  stcteme.:t    in   order 
that    t\'e    statement  may  be   rei^;arded    as    a  fraudulent    r3_^.resent- 
at  ion? 

(a)  If  a  party  makes  a  statement  and  has  ;t  tie  time 
knowledge  of  its  falsity,  "■e  will  be  cliargeable  v/ith  f rj  ud 
both  at    lav;  and   in   equity 6 

La;/  Reports    5  i^^q^    Cases  249 

(bj      If  a  perscxi  makes   a    statement    tliat   is   untru^.-   arid   at 
the   time   has   no   knowledge    in    regard    to   tlie  matter  anU   ::o  be- 
lief  in   its    trutii,    t'Ten  he    is    ch-argeable    v/lth  fraud   bot   at 
Iti-w  and    in  equity o 

42  Vermont    68 

(c)  If  a  person  makes  a  statement  thi  t 
true,  but  he  has  at  the  t  tne  no  knov/lecge  in 
matter,    slthoughhe   believes    it    to  be   true, 


is   ;  ctually  un- 
rej^ard  t  o  the 
e  will   La   guilty 


of  fraud 
thereby, 
of  fraud 


althou.-h  he   did  not    intend   to  mislead 


howeTer,    ^.e   vould  not   be   heir   guilt; 


in  equity, 
In   some    states, 
ot    lav/, 

Pomeroy,    Vol.    II,   para.   887 

32    Iowa   557 

61  I-T.Y.    145-152 

92  Kyo    176(111      Cases   280) 
121   111.    186(lll      Cases   265J 
9   Colo,    33(111      fiases    270) 

62  111.    498(Ill.    Cases  "^e^  x'??^ 
142    111.    95(111.    Cases   2o5) 

the   states,    this  proposition   discussed   under 


law  and    in  equity,    but    in 
it    only  ap   lies    to   equity.    In 
bi;.ve    fraud  at   law    there  must 
can  be    no    legal  fraud   in  the 


II,    para,    884 


In  some  of 
the  head  of  (c)  applies  both  at 
England  and  some  of  tlie  states, 
these  jurisdictions  in  order  to 
be  some  moral  obliquity.  There 
absence    of  moral   fraud„ 

Pomercy,    Vol. 
153   LT.Y,    604 
47   IT.E.    923(111.    Cases   282) 
If  a  party  makes      a   statement   thit    is   ujitrue,    but    v/hich 
he   believes   to  be    true,    the   statement  being  based   upon  facts 
that    vcu:;.d  naturally   lead  a   fair  minded  ma,n  to   the    stjae   con- 
clusion,   then  he   is   not   guilty  of    fraud   either  at    law  or  in 
equity. 


IX.  EQUITY     J  U  R   I    S  P   R  U  C  E  :T  C  E.    SR.         33. 

Pomeroy,    Vol.    II,    psra.    888 
T'err   on  i'ra  d.   and  Mistake,    pp.    57,67,68. 
But    if   the  p&rt-'  Bubsequently  discovers  his    error,    then 
it    is  his    duty  to   correct    the    statement,    otherwise   he  v/ill 
"be   guilty  of    fraud. 

And  the  party  v/ill  he  held  rdsponsihle  v/here  a  duty  to 
know  the  fe-cts  rests  upon  him,  as  in  cases  where  there  is  a 
fiduciary  relation  "between  the  parties. 


oOo 

ITov.    3rd,    1903, 


^'  EQUITY   JURISPRUDENCE   SR.      34, 

LECTURE   X. 

At   the  close   of  the  last   lecture   I  was  calling  your 
attention  to   tlae  necessary    elements   of   a  fraudulent  misrepre- 
sentation.     If  a    representation   is  mrde  "by  a  party    that   is 
Vint  rue,   hut   the  peirty  at    tlie   tine  he  makes   it  believes   it 
to   be   true   and  his  belief   is  founded  upon  facts  that    would 
lead  an  ordinary  mind  to   believe    that  it  was   true,    t-ien  the 
representation  would  not   be    regarded   as   fraudulent   either   in 
equity  or   in  lawc 

But   if  the  party  mald.n-~  tlie    statement  subsequently  learns 
that   thef  acts    are   untrue,    then  it    is  his   duty  to  communicate 
that    fact    to    the  party  to  whom   the  representation  has  been 
made,    otherwise  he  v.lll  be  rniilty  of  fraud. 

And  the  party  v;ill  be  held    responsible  wliere   a  duty  to 
know  the  facts   rests  upon  him,    as   in    case    v/here    there   is  a 
fiduciary  relation  between  the  parties.      The  party  occv^rjlng 
the  position  of  trustee   occipies  a   superior     relation  to   that 
of   the  other  party  so    equity  imposes  this    obligation  upon  hin. 
This   qvialification   would  apply    to   the   relation  to  principal   and 
acent,    s  rtl    attorney  and   client. 

DICTATION 

There  are    sane  cases  where  a  party  is   bo\ind  to   know  the 
truth  and   v.here  he  cannot    shiied  himself  behind  the  last  pro- 
position given.      As   for  exainple    in  all  c  ases   of   trust   relations, 

Kerr  on  Fraud  and  Mistake,  pp.  68-9. 
61  ?a,  pt.  427-30. 

(5)  The    representation  must   have  been  relied  upon  by 
the  party   to  whom  it    is  made,    in  order  that  it  may  be   trie 
basis   of   an   action  in  equity. 

125   UoS.    247(111.    Cases   275) 

(6)  The    representation  must  have  been  material, 

Pomeroy,    II,   para.    898-890 
15  ?:e.    225 
The   representation  need  not   hs've   been  the    sole   Incucement, 
it  may    still  be  fraudulent   altliough   accompanied  by  other   in- 
ducements, 

11      end.(N.Y.)    375 
In   order  to   claim  'relief   in  equity  on  the  gi^o^nd  of 
fraudulent  misrepresentation,    tl-ie  party  must   have   been   so 
situated    that  he  was  justified  in   relying  upon   the   statement 
made   to  him.  If  the   statements  were  upon  their    face    so 

extravagant    and  absurd  that    they  would   not   deceive    a  person  of 
ordinary-   intelligence,    they    v.ould  not  be   a  basis   for  a  pro- 
ceeding in  equity.        neither   is   a  person  justified   in   relying 


^»  EQUITY     J  U  R   I    S  ?   :.  U  r..  E  r   C   E        SE. 


35 


upon  yaeue,    loose,    a;id   unimportant    Guc^est  ions. 

The   scjne   result  follows  v/here   the  pr.rty   to    -.vhoin  t}-s 
statement    isncde   has  nacle   independent    inquiries.      !Totv/ith- 
standinf;;   the    representation  he  ever   so   false,    if  t]ifi  pi.rty  to 
v;hom  it   was  ms.de  has  mcde   indep^endent    inquiry  and   relied  upon 
that   inquiry,    then  the    transaction  v/ill   not   "be   a  basis   for 
setting  the   transaction    aside   on    the    groundof  fraud. 

If  a  pr.  rt  y  seeks  to    avoid   a   transaction  on  the  groiond   of 
misrepresentation  and   is   met   hy  the  proof  that   the   he  was 
not   deceived  because  he   was  av.-are   of   the  facts,    under   such 
circumstances  he    v.ould  have  not    action,   hut   the  proof   of   such 
knov/ledf-e  must  he  most   clear    and   conclusive.      The  presuu,)tion 
would  he    that  the  pi:rty  has    acted  upon  the   representation   as 
made   to  himo 


EICTATIOIT 

The   party  must   have  heen  so    situated   that  he  was   justi- 
fied in    relying  upon   the   statement.      Cannot  properly  rely 
upon  extravagant   statements. 

16  Me.   418 
Or  upon   vague    or  lincertain    statem::  nbs. 

Eisphani.    215 
ITeither  can    the  party  take    advantage   of  a  misrepresentation 
if  he  himself  hes  nade   independent   investigation  and   relied 
upon   such  investif:ation,    "but    tie  proof   in    regard   to   such  im» 
vestigation  must   he  most   clear   and    concluFive, 

Kerr   on  ?raud   and  Mistake,    75-8-9 
The  party  particulary  has   a  right    to  rely  on  representatiorc 
viiere  the  person  making  them  is   so   situated  t}i£t.t  he  must   ""tje 
presumed  to  know  the   facts* 

Addi t  ional  Aut  ''-'O  rit  ie s , 

142   111,    96    (111      Cases   285} 
23  Mich.    99 
Poraeroy   II,    694. 
Mere   advice    to  consult   Attorneys   or    friends  will   not 
do  away  with  the  effect    of   a  fraudulent    representation, 

Po-nerqy   II,    597 
47   Mich.    94 
As   soon  as  the  misrepresentation   is    discovered  prompt 
action   should  he    taken  hy    the  party  v.-ho  hf.s  heen    deceived 
thereby.      Ke   ccnnot   go   on  and   reap   all   the  possible  benefit 
out   of  the  t  ransaction  and  then    seek  to  he   relieved  froi  his 
obligations,        A  man  maj''  have    a  good    case    and  fail   to   get   relief 


X.  }:   q  U   I    T   Y     J   u   R   I    S  ?   R  U  T  E     H  C  7,   SR.  36 

because    of  laches. 

LICTATIOII 

Action  must   be  broucht   to   set    aside   the    transaction  as 
soon  as   the   fraud   is  discovered,    otherwise    it  will    stand, 

Pomeroy,    II,    897,    note   1, 

The    second  er  the  forms   of  fraud   in   equity  is 
PRA^UDULraiT   C0::CE.MiIR17r. 

?raud  may    .arise   from  silence   as    v«ll   as   from  spolien 
representat  ionSo      qilence  when   it    is   a  man's  duty  to  speak 
is    fraud  arxi   is   condenined  by    equit;'.        A  raisrepresentt'^ion  may 
be  mede   without   the  party  making   it    intending  any  fraud,    with- 
out   the   par"ty  making   it    knoVi-ing  that  it   T/as  b.  misrepresentation. 
But    in  case   of   a   fraudulent  concetlment   there  must  be  knowledge 
on    the  pert   of  the  party   supr-ressin::   the   information  and  an 
intention  not    to  disclose    such  facts.      A  party  cannot   be  guilty 
of   fraudulent   concerlment  without    at    the    same   time   bei;:is  guilty 
of   sane  moral  turpitude,      ^^e   cannot   conceal  anythinr   that   it 
is  his   duty   to  divulge  without    acting  contrary   to  the  moral   lav/. 

The  general    doctrine   in   regard  to    fraudulent  concealment 
may  be    .stated  thus: 

A  party  is   guilty  of    actual    fraud  if  he    conceals    some 
fact   that  is  material  to   t}Tetra::3action   in  v;hich  he    is    engaged 
and  which  it    is  his   duty  to  disci  or?. 

This   is   the    general  doctrine.      It  m.ust  be    su^jplemented 
by    the    in  qui  rty,  "when   does   the    duty  rest   upon  a  party  to  dis- 
close     those  facts?" 

DICTAT  lOi: 

Concealment  is    fraudulent  vh  ere   it    is  a  nan's   cuty  to 
speak  Just    as  much  as   is   a  false    representation, 

Pomeroy  II,    901 

l^en  is  it   a  man's   duty  to    speak  and   viien   will  he   by   sil- 
ence be    guilty  of   frrud?   There   are   three   occasions   under 
which  a  man   is   laboring  under  a  duty   to   speak: 

(1)      vhere    there   is   a   fiduciary  r  elat  ion  exist  ing  betv/een 
the   loart^es.      It    is    the   trustee's  cut:'  to   disclose    everything 
in   connection    vith  tlr^e   transaction  that  is  material  t  o  it   and 
that  may  operate  upon    t:ie  mind  o/    the   other  party  to  the   trans- 
action.     That   tr\;ist   relation  need  not   be   an  express   trust 
relation,    it  may  be  an  implied  quasi   trust    relation  existing 
betvireen  the  parties,    as    for   example   the   relation    that  ectists 
between  Principal  and  Agent,    /ttorney  and  Client,      Yherever 
there   is  a   trust    relation  t'Te    duty   to  disclose    .  ully   rests  upon 
the  party  occ\:?)ying  the    superior  position.        The  duty   to  dislose 


EQUITY     J  U  R  I    G  P   E  U  -D  E  IT  C  I^.    SR.         ^^ 

exists,    v/herever,    thouch  t}iere  may  "be   no   express   fiauciary 
rel   tion  betv;een   the  parties,    one   of  the  parties  to   tlie 
transaction  reposes   especial    trust    end  c  aif idence   in  t-.e 
other  pcrty.      Then  too  a  duty     to   disclose   exists  where  the 
transactions   surrounding;   the  pai-ties   indicate    that   a  fic.uciary 
relajtion  really  exists,    though  not   expressly  stated  and   altho 
not  expressly  i'^-posed  hy    pivj  lanr-uage   of  the  parties. 

LI  CT  AT  JOLT 

A  duty  to  disclose   and  a  failure    to  disclose  will  "be 
fraudulent   v/here    tjiere   is   an   express   or  quas i- fiduc i c  ry  rel- 
ationship "between   the   parties,    such  as  exists  "between  the 
trustee  and  cestui   que   trust,    secondly  v/here  a  trust   relation 
has  "been  raised  "by  one  of    the  prrties  puttinc   .'-imself   in  the 
hands   of   the  other.    Third,    v/here    such  relationship  nay  he 
implied  from  the   facts   surrounding  the   case, 

36  N.J,    174(111,    Cases   2£9)      . 

Law  Rep.    2   Chanc,   Piv,    55(111      Cases   330) 

90  ^.^eraont    533(111      Cases   294 J 

179  ""a.    146(111.    Cf.ses   297j 
fraudulent  concealments   occur  more   frequently   in  coi tracts 
oj?  sale,   pro"bahly,    than  in  any   other  contracts   or    transactions. 
As  to   duty  of  the^Aendee:      If    the  relations   of    the   parties  to 
a    contract    of    sale  are   such  as    to  "brin,"  them  within  either 
of   the    rules   t'lat  i  ha"'e    Eu.:,£:ested,    any  fiilure   of    the  vendee 
to   disclose   a  material  fact    would  "be   a  fraudulent   c  oncec.Lnent . 
But    in  the   a'bsence   of    such    relationship  and  under   orc'inary 
circumstances,    no  duty  rests  upon  the  vendee  to   disclose.      The 
vendee  may  be   aware   of  a  peculiar    v&lue   that    attaches   to  a 
piece   of  property,    wMch,    if  kno^^n  to   the   vendor,    would  cause 
him  to    refuse    to  enter  into  tlie    coiitr^ct   or  to   demand  a  higher 
price    for  the   property;    yet    in   the  a"bsence   of  a  fiducir^iT 
relation   or   in    the  a"bsence   of  a  particular  trust   or   confidence 
"between  the  parties,    the  vendee    is   unc.er  no   o"bliG£tions  to 
repeal  this   value. 

some   courts'have   held  to   tlie  c  ontrary.      In  a    case   in 
Kentucky  the  vendee   discovered  valua'ble   salt    si^rincs     upon  a 
piece   of   land  arc.  "bought    t}-ie    land  wit  -.otu  diaiosinc    that    fact. 
That   transaction  v/as    set    aside   on    that  .ground. 

LICTATIOi: 

As  to    the  duty  of  the  vendee   to    disclose    in  a   contract   of 
sale    it  may  he    stated    that  in    the  a"bsence   of  a  fiduciary  re- 
lation as   explained,    he    is   not   "bound  to  disclose  any  special 


X.  EQUITY     J  U  R  I    3  P   R  U  D  E  N  G   E      vSR.         ^^' 

value    of  the  j^ropei-by,    -   as   a  nincral   value    ibr  extxiple. 

24  "ich.    335 

158  Pa,    St.    263(111     Cases   C87J 

62    111.    498(111,    Cases   272) 
It    is    only   silence,    however,    that   is  permitted.      Any 
word  or  act   that  tends  to   draw  away   the  attention  of  the 
vendor,    would  he  re^-arded   as   fraudulent. 

DICTATION 

It    is   only   silence,    hov;ever,    that  is  perj.itted,      IS   in 
addition   to  silence   there    is   any  word  or    act   that  tends   to  mis- 
lead and  to  hurry  t lis    vencor  into   a  "bargain    that   he   would  not 
otherv;ise  have  made,    will  he   a  fraud  of  w]J.ch  equity   v/111   take 
cop-nizance. 


oOo 

Kov.    9th,    1903. 


'.,v 


:'I.  E   q  U  I   T  Y     J  U  R  I    S  :p   R  U  I)  e  :^  C  E.    SE.        3  9.  , 

1  E   C   T   U  R  E  XI. 

oOo 

'^JTIE3   or  '.^"DOR. 

The   duties   as    to    disclosure  by   the  vanclor  are  riuch 
the    se    e   as   t  Iio  se  restin.j  u-on  the   vejidee.      ■:-e   is   not    orc'.incrily 
"bounc"      0  ("isclose   zny  more    tM  n  the   vendee,      -here    the  "/.arties 
occupy  a  relation  t  a;arc  s    eac'n  other  that   ]:i.s   ncthin:;   in  it    of 
conricencn    or    crust,     /i'^    vendor  no     lore    t'-ian  the    vendee    is   "bound 
to   c'isclose,    but   if   any   one   of   these   trtist   relations    e::ists 
tliat    I  have    considered   in   connection  -.vith  t'le   vendee,    t'len  a 
full  uisc.Losure   on    -.he  pcirt    of  the  vendor  must   be  ii;.de.      It 
should  be   observed,    '.ov/ever,    that    tire   fiducit.  ry  relation  as 
cL'fcctin.,   the   -"/ent  or  is  more   freqiBntly   iji/.lied  t^i'.n  in  the 
case    of   t 'b    vendee,    because   t;ie  vendee  r.iore    frequently   reposes 
s. : ■:■. c ial    c  aif  id e n ce    and    tru st    in   t he    vcn cor. 

EI CT ATI or 

The  C'Jttios  as    to   disclosure   as    to  the    vendor  are     -ractic- 

ally   the  sj-.ne   as    those    'iJiich    apply    to   T:he   vendee,   he    is  never 

bound  to  oisclose   unlesr.    some  one  of  th3   fiduciary    relations 
exists. 

29  ::.':.  343 

40   "alif.    14o 
Eu;:    the   vendee  probably   is    caa-.elled  to  disclose   More 
frec;uently  tlian  the  vendee   for   tiie  reason  that  the   venciee 
?nore   frequently     th£.n  the  vendor  puts  himself   in  a  sit-'-rtion 
\r-e:'e   he   defends   upon  the   stt  tements   of   the    other  party  to  the 
transact  ion. 

Pomeroy,    II,    904 
'"nere   a    contrtct    is    ficuci;,ry  in   its   nature,    lihe    insur- 
ance  cai tracts,    full  disclosure  must   be  made. 

2   Ohio    c;t.    452- 
"^oneroy,    II,    907 
If   t'r.Q   •^rendee   df^sires   to  yjrotect   himself  ac^-  inst   fraudulent 
concealmen   or  fraudulent    representation  on  tlie  p.rt    of   th.e 
vp   e'er  "he    should  procure   a  'A'arrajity  from  tlie    vendor. 

I   s'-'ould   not    leave   ".'lis   subject   "/itl'iout   sxoGcestin^  scxne 
of   the  remedies  that  may  be    applied   in   cases   of   fraudulent 
represent.:     ions   or   fraudulent   concealments.      It    is   not    every 
case,    as  :"ou    "sell     rnov/,    that   calls   for  equitable   relief.    There 
are   a    -iTeat   na  iiy   cases  where   you  can  .i.:o   on  to  the   lav/   side    of 
the    c  oirt    ^-'x    i^et    relief.     You  may   rescind   the    contract   at 
lav;  aid    sue    for  v^lxitever  lias  been  paid  on  t'.ie   contract,    or 
you  may    affirm  the    coittr?  ct   and  s^ie    for     the  dajiiajjes  you  hire 
sustained.      In    siic'i  cases  v;here   the  legal    remedy   is    entirely 
adeqviate   there    is   no   nccesr.it  y  for    ijoin,;;  into  a  couit    of  equity. 


XI  .'■■  q  u  I  T  Y    J  u  R  I  p.  p  R  u  D  jc  11  c  I.  :.:;.     40. 

Whether  there    is   an  ac: equate    remedy   at    la;v  depends    lar^.ely 
upon   t'e    individual  case.        If  you  conduce   tliat    a   court    of 
Equity   is   t  lie   ;oro]/er    trihunal  for  t  lie    rjustneiit    of    yovir  v/roncs, 
you  must    first    Sjj  ect    your   reriedy.      /.nd  the  ordinary  reinedy 
for   fraud    is   tlie    Renedy   of  Recission   or   Cancellation.      The 
defense   of  fraud  inay  be   urged   in  cases  for  the   s;  ecific  per- 
formance  of   the    contract.      The  Remedy  of  ReforrrE'tion   is   open 
where    is   mistake  "by   one  party  accompanied  hy  the    fr<-..ud   of  the 
other. 

I   v;ill   n.Kt    tc-ke   up   1 1-ie    suhject    of, 

Constructive   fraud   is   a  more   difficult    subject    thr^n 
actual   fraud.      Untruth  is   an  essential  element    in   actual 
fraud.      It    is   never  so   in  constructive    fi^avid.      constructive 
fraud   is    simply  a  term    dsscrintive   of    certc, in  acts    or   contracts 
which  equity    regards  as  wronbful,    and  for  wliich  the    court  will 
furnish  to  the   parties   injuriously  affected  the    same   remedies 
that    it    furnishes   in   cases   of    rctual  fraud.      ".Iquity    says  that 
v/herever   csrtain  ,c  onditions   or   situations   exist   the   lav/  v/ill 
assA,-me   that  it   is   £   fraudulent  situation.        ^hever   certr  in   con- 
tracts   are   entered   into  between   certain  parties   sitr^ated  in 
a  -oarticular  way,    equity  v;ill  assume  tliat   those   contracts    ai'e 
fraudulent.      Actua.l    fraud  must   be  proved,    it    cannot   be  assuraed; 
constructive    fraud  need  not   be  procred.      Ml     'ou  hrve   to  prove 
is   the   situation  t}iat  equity  vail  reco.-nise   as   developinc   con- 
structive   fraud.        i?or  examrae    there    are   contracts   thi;.^    the 
lav;  savs   are  against   public  policy,    equa^-  v;ill  presvane    those 
contracts   are   fraudulent.      This   is  a  presumption   tnat   r.iay  he 
overcome  by  proper  evidence.      The  situation  of   the  p..  rties   is 
(ome times    such  the t   equity   says    that   they   cannot   deal  v;ith 
each   other  on   tine    same  brsis.      ?or  exai.T-'le,    contracts   -.vhich 
are  made   tritween  an   aced    father  and  a   son   in  the  full  vi^-or 
of  his  youth.      /    contract    is  )aace   between  them  m  v/hic-i  the 
father   is   aT^parently   ttlcen    advantage   of.      If   it    is   apyaront  _ 
that    tl-"^    fcther   is   under   the    influence   of   the   son,    equi.;-  •.ill 
not    require   that   the   father   shov;  i^ctual  fraud    -.hen  he   ..roceeds 
to  have    the    transaction   net    aside.       '11   that   is   neces.-rry   to 
be   shov/n    is    that  the    son  occupied  a   superior  position   oO 

the    father.      Just   ?  s   soon  ac    t^aat   is   shown  equity  vd.i   c  oii- 
clude  as   a  matter   of   lav;  that    the    contract  was   fraudulent. 

MCTATIOi: 

Untruth   is  the  characteristic    of       .  actual   fraud     but 

in  the    case    of   constructive    fraud   it    is   never  essentia.,   that 
there   should  be  untrut h  bet-een  tlie  p- rties.      Constructive 
fraud   is   a    term  descriptive    of  the    results   t-.^t   equity  raises 
out    of   certain  contracts,    c  on:  it  ions    or  out   of    ohe   rele.ions 
of   the  parties   to  one   mother.      Constructive     ra-a   is    .he    m.ud 


XI.  EQUITY     J  U  .^;    I    S  ?   K  U  I)  E  F  C  7.,    SK.      41. 

f  •a':   ^':e   la-"  pres'-'nes   fro'-.   the    very  exister.ce   of    eertcin  con- 
tr^.c'.s    or   certain   I'elc'.tions.        In  ■■\iil:.inr:   ou'c  e.  ;"-i*r"i.a   i.-cie   ci.se 
rll    that   needs    to   be   done   is   to  show  the  contre.ct    or  concliuio 
or   relations   of   the  nr. rt ies. 

Poneroy,    II,    922 

Constructive   ~raud  maybe   discussed  linoer   tliree   different 
heads.      The   authority  for   so  doing   is   found  in  the   celebrated 
case   of  "larl  of  Chesterfield  v,    Jensen,    in  which  lord  Mar.-  v/icke 
delivered  t }"e    or.inon   of    ^,^.3   court.      Lord  Harc'\;ic":.e   divided 
CO'istructive   7raud   into; 

{!)      '.^raiid  r-ppaJr'ent     .ror.i  tjie   intrinsic   n,  ture   a:id   subject 
of  the  bar^;;ain   it  self  j 

(2)       ^raud  'presuried  froi.i   the  cixMrncircujista.ices   and 
con''ition  of  the  ;;iarties   c  en  tree  ting; 

(4)      F^i'aud   infe    red   from   tho  n- ture 

and  circijunstf nces  of  the  transaction  as  beinc  an  in- 
position  and  deceit  on  other  persons  not  parties  co  the  trans- 
ac  uion. 

DICTATIOy 

The   '^onstru.ctiv?  ?rauo   of  Tiquity  is   enbrr^ced  v^itMri  the 
t'lree    classes   :iade    oy  Lord  IIarcv/icl:e   in 

7]arl    of   Chesterfield  v.    Jeiisen,    2  Ves.    ^t,    125 

(1)      The    first    of  t}]ese    classes   ernbnces   fraud   z\:    ai'cnt 
from  the    intrinsic   nr/ture   :  nd   subject    of    the  trcns.ction  itself. 

(Sj      The  fraudulent    character    of    a  transaction  Tnny  be    in- 
ferred  from  its   nature  because   of   its  terns. 

Thus   a    transaction  iriay  be    fr:  udulent   on  account   of   in- 
adequac;:,'   of    consideration,    if   the    ina.tiequacy   is    r:o   grec..t   rs 
to   shock  the  c  aascier.ce    of    t'le    court,    and   to   ftir;iish   satisfact- 
or;/    evidence    of  fraud. 

EICT.-TIOr 

Inadequacy  of    consi.  orat  ion  may  be    so    greb.x   ar.    to   star;ip 
t-'e    contract    as   f  raur.ulent ,    but   the    court    of    equity    v.lll   ordin- 
arily  interfere    on  this    .-Tound  only  \-:hen   the   inaceouacy  is 
sue"     as    to  sliock  the    co;:science    of   tjie   c  jurt . 

45      .J".]"q.    5(111     Cases   301J 

48  i:ich.   373 

50  :'o.    438 

If,    hiov.'e'.'e.-,    tlie    inj  dequcc,'   of   consi   errtion   is    ^-cco:  i'anied 
by   inequi'cble    conduct,    the   court    of    equit y  v,ill  alv/ays   in- 
terfere, 

Poneroy,    II,    928 

Bargains    for  conveyinc   away  an  exT.'ectancy  for   a  smi,ll 
c  onsif.erntion  may  always   be    successfully    attj.cjred   in   eruuity 
on   t'-^.e      round   th;  t    t:'-iey  are   c  aistruc-cively   fraudulent. 


XI.  ji:  Q  u  I  TY    J  u  r  I  G  r-  p.  u  L  E  ::  c  E.     z:  ,        42. 

nCTATIOIT 

Usurious    contracts   are   constructively    fraudulent   v;here 
there   are    strtutes    against   usury,      so   are    ell    "c.^iin-  and 
v/agerin^'    contracts.      They    are    re,;arded  as   constructively  fraud- 
ulent  and  will  he    set    adie   hy  a   court    of   equity, 

Porneroy   II,    929-930 
Bispheain,    2';-5  . 

(hj      /    contract   nay  he    inherently    fraudulent  on  account 
of   its    suhject   matter.        ?or    exaraple   marria/;e   hrokera^^e   con- 
trr.cts, -contracts  hy    ^ich  one  I'lart-j  for   ■    c  onsic.eraxion  a/jrees 
to   negotiate    or  procure   a  raarriage    for  another.      Contracts 
of   this   kind  are   void  as    a;j,'ainst   puhlicpolicy .      Contrsxts    of 
this  kind  vrere   good   at    the  civil  law,   but    at    common  lav/ 

such  contracts  have   a  Iv/ays    been  held   illegal   and   equity.'  has 
from   the    earliest   period   of   its   jurisdiction  regarced   them  as 
utterly    void.      VTnat    I   h.-  I'e    said   is    equally  applicable    to  con- 
tracts  in    restraint   of  marri  age  i    also   contracts   or    agreements 
to    compensate   a  parent  or   guardian  for  procuring  or    oDnsenting 
to  a  marriage   with  his   daughter    or  v/ardor  secret   agreements   of 
any  kind  the   object    of  v/liich  is   to  T^ramote   a  particular  marri- 
age.     All   such  agreements   a. re   constructively  fraudulent.    liut 
a  condition   in  a   ccntract    or    agreement   that  v/ill    result   in  a 
partial  restraint   of  ma.rriage    is   not    void,    for  exaxrole,    a   con- 
dition  that  a  person   shiall   not   marry  a  particular   .-erson,    or 
tlrnt   a  person  shall  not  marry  until  a  certain  tome,    t?iose 
conditions  are   not   void.      If   the    condition  is    reasonable   equity 
?/ill  not    regard   it   as    constructively    fraudulent, 

l-ICTATIOi: 

TIarriage   brokerage    contracts   are   constructively    fraudulent 
and   vdll   always  be   set   aside. 

115    Calif.    252 

81  I<y.   321 

124  IT.Y.    156 

7  I'lass.    112 

Poneroy,    II,    931 

Ptory,    I,    2G0-70 
Contracts    in    ,,eneral    restraint   of    trcde   are   constructively 
fraudulent,    and   will   be    set    aside    at    the    suit    of   the   injured 
party.      The  question   is   in  such  a   ca.se,    not    -./h ether   the   restraint 
is   Toniveral   in   character,    but   whether   it    is  unreasonable.      If 
unreasonable,    the   courts   v;ill   re,:ard   it   as   c  cnstructively 
fraudulent   and  will    rescind    the   cot^act. 

104   Ga.    188(111      Cases  303; 

27  Hich.    15,    notes. 

31  Tlich.    490 

160  Hass.    50 

103   U.S.    261 

oOo liov.    9th,    1903 


XII.  EQUITY      J  U  R'  I    S  P   P.  U  E  E  IT  C  E.SR,  43. 

LECTURE      XII. 
-..oOo 

There   is  a   clacs   of  cases   that    are    ccnstructiYely  fraud- 
ulent  and   that   rill  not  "oe   sustained  in  a  court    of    equity,    and 
I   refer  to   contracts  made   in  view  of  the   Improper  controlling 
of   official  conduct,      cuch  contracts   are   opposed  to  i)ublic 
policy,    and  are    constructively  fraudulent   and   mil  te    set   aide 
in  equity^ 

Contracts   in   rioich  one  party  agrees   to  procure    official 
eraplo^rment   for    tlie   other  are   constructively  fraudulent. 

Lobbying    contrccts    are   c  cnstructively  fraudulent.,        A 
pary  may  properly  appear  before   the  proper  legislative   committee 
and  urge    the  passage   or  defeat    of  a  bill,    and  a  contract   so 
to   do  would  be   upheld;    but    a  party   cannot    agree   to  use  personal 

influence   upon   individual    legislators.      Contracts    tlaat 

are    secret   and  underhand  made   with  Individual  members    of   the 
legislature   for  the  purpose    of    controlling  lesgislation   are 
constructively    fr;udulent  a.id  will  not  be   upheld ^      It    is  proper 
for  an  attorney    to  agreed  to  furnish  his    services  before    tiie 
legislature  as  a  v;hole   in  arguing  a  pending  bill. 

Contracts    tliat  have    in  viev/  the    improper  influencing  an 
executive   are    also   constructively   fraudulent.      It    is  perfectly 
lav.'ful   for  an  attorney    to   agree   for   a  ccnsideration   to  go  be- 
fore  an  executive   and  presents   arguments  that    in  his   judgment 
or   th^.t   of  his   client   should  lead    the  executive  to    tal:e  a  cer- 
tain line   of   action;   but   contracts   in  which  the  personal  or 
lndivid\.ial   service   of  the  attorney  or  party  is   to  be  brought 
to  bear  upon  the   executive   are   constructively/  fraudulent.      As 
for   example,   where  a  party  agrees   to  use  his  personal   irifiuence 
on  the    ground   of  pr-.vious  service  to    trie    executive    crt  o  use 
his  political   influence  to   obtain   a  certain    result    those    are 
c  on st  r^c  t  i ve ly  f raudue lent, 

LI  GT  AT  lOlI 

Under  this  head  v:e  ?iave    a  group   of    cases   that   ha-.'e   in 
view  the   r  proper  controlling  of   official  conduct,    like  for 
example,    tlie  -Drocurement   of   official  t)osition. 

14  ITfivada   17  5 

2   llo      App.    82 

F.enard   on  Public  Policy,   357 


XII.  EQUITY     J  U  R   I    S  P  R  U  D  E  IT  C  E.    PP..  44. 

Or    the   improper  controlling  of  legislative   conauct  —  lotty- 
ing  contracts.      These   are   illegal. 

100  Pac    St.    561 
43  T/iSe    344 
64   Gao    704 
54   lovra  301 
Contracts    iirproper   influencing  execiitive   action, 

Ponieroy  II,    935 
All   contracts   the    s\abject -matter   of  v/hich  is   contrary  to 
good  morals  arj   condemned  "by    coui-ts   of   equity >    and    are    illegal 
and  void   in  equityj   and    generally   at    law. 

Pomeroy,    II     para,    936 
I  T;ill  now  pass    to   the   second  division  of   the    su"bject, 
na-mely    that    species   of  fraud  which  is  presumed  from   the  cir- 
cumstances and  condition   of   the  parties    contracting.      Under 
tMs   head  may  he   grouped   a  large    "v-nriety  of    caseso      All   of 
these  cases    depend  upon    oMs  principle:      That    in  order   tir;,t  a 
contract   may   stand   in   a  court   of    equity,    there  must   "be   full 
and    free    consent   on  the  par-^    of   the  parties    to   thee  ort  ract    or 
transaction.      The  consent  required  "by   equity  is  much  fuller 
and   freer  than  the   c  absent    required  hy  law.      This    class   em- 
braces  those    cases   in  which  the  transaction  is   condemned 
"because   of   the   a'bsence   of  the  ahsolute    consent  tlriat    is   I'equired 
by   courts   of  equity t-        In   order  that   that    consent   which  equity 
requires   shiall   exist    the  parties    contracting  must  he  physically 
and  mentally  capa"ble    of  consenting-  The  parties   entering 

into    the  c  ontract  me^y  "be    so   clrcumstaaiced  tha,t    equity  will 
hold   that  there    is    the  absence   of  that  full  and    free    consent 
which   the   court    rquires  "before   it  will   sustain  a  transaction. 
In   these    cases    th'^re    is  no   actual   fraud  necessarily  present, 
hut    the    situation  is  such  that  the    court   will  assume   that   the 
contract   hes  been  procured  by    fraud,      so   if  a  party   is   suffer- 
ing under  duress—'gi  eat  f.tna.ncial  duress  and  a.'dVDntage   is  taken 
of  his  re  cessity,    contracts   entered   into  under   such  circu.istaii- 
ces  may  be    regarded   as    cDns  tructively  f  raudulent.  Or   if 

the  party  is  mentally    cHouded   so    that    it   is    impossible  for  hii 
to   comprehend  the  situation    that  he   is   entering  into,    a  con- 
tract   entered   into  und^r    these    circumstances   is   constructively 
fr-audulento        Bat   this  presujaption  maybe  removed*      This  group 
includes   contracts  absolutely  void  on  accD  unt   of   entire   ab" 
sence   of  c  opacity;    contracts   tfet  are    voidable   only;    and  those 
that    are   only  presumptively   invalid.        Oont  racts     and  trans- 
actions    of  parti efi  totally   ire  apacitated,    contracts   of   :  '     • 
idiots  and  lunatics   or  generally  deemed  to  be  invalid  in  equiti'-a 
pome   speak  of   them  as   void   and   others  as  voidable,    but  for  the 
purposes   of  this  discussion  it  makes  no  difference o 


XII,  E  0   U  I   T  Y     J  U  K   I    S  P   H  U  D  Z^  JT  C  ZZ,    SP. ,        45. 

All   transact  ioriE  with  persons  non  cornpos   are    constructively 
fraudulent    and    rail  Idb   set   a^ide,    but   if   it   appears    that 
the    contract   v/as  for   the  lif-nefit    of  the  non  compos,    and  that 
there  has  "been  no   over-reaching,    and  that    the  party  has   sviffi- 
cient  mental  ability  to  understand  the    transactlcnj    then  it 
may  be   su^taa.ned.      In    the  first   instance   the  c  en  tract   is  prima 
facie   fraudulent,    taid   the  burden   of  prcff   is   upon  the  other 
party  to   sItovv   that  the  non   compos  T/as  not  taken  advantace   of. 

IJICTATIOIT 

Cases   falling  under  this  head  a^e    these   v.h.ere    there 
is  an  absence   of  that  absolute    cosent   required  by  equityo 
This    cofis^int  a-i.,t    involve  phys2ca.lj   m3ntal  and  moral  capacity 
necessary   to   enter  into    the  contract «      Thus   cQntracts    entered 
into  vath  non   ccnipos  pers(»ns    are   c  onsti-Lictivcly  fraudulent. 

l^ome-o/,,    vol      11,    946 

42  I.Ilch     135* 

49  Klch.;    l"-:.? 
But    contracts   of    this   kind  may  stand  if    the  pres-am:':'tion 
of  their   invalidity  is    over  come  by  a  full  shovrins   that    the 
transaction  was   for   the  beaiefit    of  tho  incapacitated  person. 

Kerr   on  ^raud   aiid  I'!istai:e,    144-5^ 
SO   too   if    the  party   does   not  icnoiv  of   the  insanity  and  the 
contract    isa  fair   one,    it    wall  usually  be    sustained^ 

44   Iov:a   229 
V.'here   tlie  re    is  extrcine  raental  weakness,    though  not   ejnoiuit- 
ing  to   legal   in;  tpacity,    a  transaction  is  presumptively  fraud- 
ulent.     It   may  be   set    aside  without    the    showing   of  any  other 
incident.     VAaen  the  extreme  menta.1  weakness  has  been   shownj 
the  burden  of  proof   rests   vipon  the    other  party  to  the  trans- 
action to    show  that    it   was   fair  and  that   no   advantage   hr,d 
been  taken  of   tlxz  mental  weakness, 

dictation 

In   case    of   extreme  mental  weakness,    though  not    a"iTE)Ui:iti  ng 
to   legal   incapacity,   the    transaction  v;ill  be     constructively 
fraudulent   and   will  be   set   aside   unless  the  presumption  can 
be  removed  by  a   shov/ing  that  full   consideration  has  been  paid 
and  that    the  transaction  is   not    to   tine  disadvantage   of    the 
"oerson  who   is    laboring  imder  the  \veal:ness» 

94  U.Go    511(313) 
113   IToYo    462(33  6) 

Study    these    two    cases  carefully o 

The   line   between  extreme  mental   Tweakness  and  actual 
lunacy   is    very  hard   to  draw  and  the  courts  do  not   attempt    to 


XII  EQUITY        JUPlirSPRUKEHCE.    SH.  ^o 

lay  dowTi:.  any  peneral  nnle,    "but    decide   eacli  case   upon   its 

particular   circujnstances  o 

DICTATION. 

TOa;never   there   are  unequitatile   incidents   like     undue    influence, 
inadaquacy  of  p.-'ice,    misrepresentations,    etc,    equity  will   set   aside 
the   contract,    hut    it  will  not    do    so   on  the  ground  of   acttual  fraud.. 

A  transaction  may  he   constructively  fraudulent    if   entered  into 
with  a  person   in  great   pectmiary  nececsity,    for   the   reason  that   a 
per    so   circumstanced  iiiight  not   he   ahls  to  give   that   full  and  free 
consent   required   oy  a  court   of   equi+j   .        A  m?n   in  f in  ncial  diffi- 
ctt.lt-ies    is   in   a  state  v;here  he    is  v;illj.ng  to    sacrifice  his   rights- 
Under   such  circumstances  he  will  do  what  no   ordinoxy  "business  man. 
will  do    in  ordinary  circcins  fcances .        "or   example,      a  part   agree 
with   another    in  financial  distress,    that  he   v/otild   endorse  his  notas 
for  him  for    a  two  thirds   intsrest  in  his  husinesso        He   simply  lent 
his  name   for   a  short  time   to  tide  him  over  his   difficulty.        The 
court    set  the   contract    aside   as  fraudlcnt   hecause    the    %arty  was  not 
in  such  a  condition  to  give   a  full  and  free  consent   to    the   ccntrs.ct. 

DICTATICM 

A  court    of   equity  may  set   aside   a  transaction  that  has  hcen 
entered      into   hy  a  party  in  great   pecuniary  distress  upon  the 
theory  of  the   ahsence   of  that   full  consent   required  hy  equity. 
Courts   do   not    often   do   this   unless   some   other    inequitahle   incident 
is  prflsento 

:?urther,    a  contract    entered  into  with   a  party  -.vhen  he   is  undvr 
duress    is   c  aistructively  fraudulent    and  will  he    set    aside. 

7  Wall  205    (Illo   Cases   319) 
Contracts  with  persons   totally  incapacitated  hy  reason  of 
intoxication    are   constructively  fraudulent.        If  the    person   is   so 
intoxicated  as   to   he   unahle  to  comprehend  the   nature   of  his   act 
it    is    invalid  hecause    it    lachs   that   con^^ent  which   equity  requires. 
Such  an   intoxication   is   a  ground  for    equitahle  relief  -cisren   in 
ahsence  of  fraud  or  undue   advantage   "by  the   other   party  a 

DICTATION 

A  contract  with   a  person  incapacita  ed  hy   intoxication    is 
constructively  fraudulent  o 

C :ntlnued   3n  next  lecture. 
-oOo-  l^cv.   I6th,I9C3 


XIII.      EQUITY  JURISPRUDENCE.   SK.     47. 

LECTURE  XIII. 


Continued   from  Lecture  ZII,.  ) 

Put   courts   are   no   ready  to   act    in  cases   of  this   kind  usually 

unless   t-iey  find    some   element    of  actual  fraud. 

"Pomeroy,    vol.    II,    949 

72   111.    108 

59  Virginia  576 

1  N.J.   Eq.  346 


There    are   certain    relat  ions   that    equity  regards  v;ith    sus- 
picion;   there    are    certain    relations    from  which  fraud  will  "be 
pres-jned   if    contracts   are   entered   into  hetv/een  the  parties. 
r.£;,,    fiduciary   relations.      In  every  fiduciary  relation   there 
is   in  law  an  implied  condition  of   superiority  on  the  i"  art    of 
the   one   having  the  fiduciary  duties  to  perform.      This      condition 
of    superiority    is    supposed   to   carry    vdth  it    its   influence   and 
to   affect   the  transactions    entered   into  between   the   parties, 
and    every  transaction  entered   into  "between  the  parties  ty  which 
t"-e    superior  party   obtains   an   ac.vant&ge    over   the  other   equity 
presi^mes   it    to  h,- ve  "been  obtained  by  reason  of   this    suj^ierior 
ini'luece.      There   is  a  presumption  against   its   validity.    If 
you  s'\o'-'  the    existence   of    tlie   fiduciary  relations  betvseen   the 
parties   i  nd.  stop    there,    end   the    c?se    stops   there,    you  ha^/e  m^de 
out   ;    p  rim.a    f   cie    ca^e    and  the  transaction  will  be    set    aside. 
But    t-e   other  party  may   overcome  the  presumption  by    showing   that 
the    transaction  was    open   and    above-board,    ond    thjt  there  was 
no   special    odv;  ntage    tal-sn  to  himself,   and  that  it   was    entirely 
fair  to    the    other  party.      There   must   be   a    showing  mt  de    that 
there  was    a  fair    ajid  full   disclosure    of  all   the  material   f;  cts 
by    the    superior  party  and  that   no  advantage  has  been   taken   of 
the   relation;    and    that    the    transaction  has  been  fully  acquies- 
ced  in  by    the   cestuy  que   trust   and    that  he   is  capable    of  acquies- 
cing and  is  not    laboring  under  any    disability.      Jor   example 
it    is   regarded  as   improper   for  a   trustee  when  ]ie    sells   lands 
in  his    trust    caprcity  to  bee  one   a  purc}iaser   of    that  property. 
It    is   presumptively  fraudulent  ano.   the  c  estuy   que   trust  m.- y 
have    it    set   aside,      ""either   can  he  becMonesell  his    own  property 
to   to   the   trustee   either   direct  l^'  o^  indirectly.      It    is  a  trans- 
action   tjiat  is   presumptively   invslid. 


XIII,  EQUITY     JURISPRUDENCH.    'P..      48. 

The    relation  of  attorney  and    client   is   one    of   the    closest 
knov/n  to  the    law, and  £.11   transactions  between   attorney  and 
client   must   be    open  ancl  a'bove-'board,    and    vdth  a  full   under- 
standing and    disclosiire   on  the  part    of    t>B   attorney.      Such, 
transactions   are  presumptively    fraudulent    in  the   first    instance 
provided   the    transaction  his   to   do   with  that   subject  matter 
which   the  attorney    wis    engo£ed  to  do  bvisiness   about.        He   can- 
not  properl;/  make   a   conveyance    or  take   a    sale    of   land  to  him- 
self  from  his    client   excepting  upon   the    fullest   disclosure   and 
upon  a  full  and  adequate    consideration  being  paid. 

An  attorney   in  drav/ing   a  will,    cannot  properly   incorporate 
therein  a  devise   or  bequest    to   himself, 

DICTATION 

In  obedience    to   the  principle    that  there  must   be  full   con- 
sent   on   the   part    of  all  the  prrties   to  a  transaction,    equity 
regards    an    constructively    fraudulent    contracts  made   between 
parties   occupying  a  fiduciary  relation  in   regard  to  property 
that    is    in  ary  waj''  affected  by   that    relation,      A  trustee,    for 
example,    cannot   properly  pruchase    trust  property   eit-ier  directly 
or   indirectly.      The  principle   applies  to   trustee   and   cestuy 
que   trust,    Att  orne;''  and   Client,    Gx;iardia  n  and  V'ard, "  Administrator 
and  "eirs,    Principal   and   Agent,    and  to   all   relations   v/here    there 
is   either  an  actual    trust    relation   or  where    there    is   a   quasi- 
trust    relation, 

143    111.    513(111,    Cases   335) 

84  Ky,    219 (    111.    Cases   333) 

Pomeroy,    II,    955-65. 

Bispham,    231,    239. 
Y/here   there   is  no  fiduciary    relation,    still   if   the   trans- 
action  is  the  resixlt   of  undue    influence   exerted  by    one  party 
upon  the    otlier   such  as    to  prevent   any  true    ca:sent,    though  not 
of   the  kind  amounting  to  e-ctual  fraud,    equity  vail    regard  the 
transaction  as   constructively  fraudulent .        In  cases  where 
there   is   an   expressed    fiduciary    relation,    the    court  assums 
the   influence    of  the   trustee   over    the  beneficiary,      But    there 
are    cases   wliere   undue    influence  r,iay  be  urged  as   a  reason  for 
setting  aside   a   trtmsaction  where    the  re   is   no  actual   trust 
relation  between   the  parties,    and  where  the   influence   is  not 
actually  frav:dulent    in  chare  cter.      And   in  many    cases    the  party 
exercising  the   influence   does    so   without   ary  fraudufent   intent 
and  perhaps   does    so  unconsciously.      In    such  esses  things    are 
done    T^i.ich  he    -.Tould  not   he  ve   dene  had  the    influence   not  been 
exercised.      :?requently    the  relation   of   the  parties   is    such 
t}mt    equity  will   assume   that  undue    influence   has  been  exer- 
cised and    tliat  therefore   a    transaction  between  the  parties    is 
constructively  fraudulent.        ?or   example,    suppose   that   a  spiit- 
ual  advisor  becomes    very   closely    associated  v/ith  a  person  and 


XIII.  EQUITY      J  U  R   I    S  P   R  U  D  E  N  C   E.    SR.         49. 

on   accoimt   of  his    relation  as   spiritual  advisor  gets   a  great 
inflTience   of    the  person,      '^e  iTiay  not   he    ccnscicus    tint   he   is 
exercising    such    influence,      ire  inay  not   he  conscious    that    he 
is   f:;uilty  of  fraud   in   inducing   that  person  to   deed   or    devise 
his   property  to   the  religious    organization,   "but    the   court 
will    regard   it    as  presuraptive  ly    fraudulent,    unless   a    clear 
showing    is  made   that    there   has  heen  no   over-reaching  and  that 
the  part;/  has  leen   entirely    free    and  untraininelled   in  his 
action. 

Sometimes    the   relation   ofparent  and    child  are    such  as   to 
"be    in    effect    fiduciaiy  .        The  parent   is   old  and    fee"ble   and   in- 
clined to   look   to  the    son   for  guidance.      The   son  is   j'^omig  and 
vigorous   and  in   the  prime   of  manhood.      A  transaction  between 
the    father  and  son  under   those    circiims  tances,    particularly   if 
it    results    in   the  conveyance   of  property    from  the  f  atie  r  to  the 
son  upon  a   small   considei  at  ion,    would   "be    regarded  by    equity 
as    CD  n  struct  ively  fraudulent.        On    tl-ie   other  hand   if   the  parent 
was    in   the  prime  of   life   and  the    son  just   cone   of    age   and  pro- 
perty v/as    deeded    from  the    soa  to   the  parent,    the  presumption 
may  be   the   other  way. 

Very   frequently    you  will   find  tmt   a  physician    m  dealing 
with  his  patient  unconsciously   exercises    that  influence   which 
equity    regards    as  imdus,    and   if   a,s  a   result   of   that  influence, 
the  patient   deed   or  bequeaths    valuable  property  io     the  physic- 
ian,   equity  vdll   regard   the  transaction  as   constructively 
fraudulent  ^ 

There   is    another   example,    thiat   is,    in    case    of   an  engaged 
couple   just    on    the    eve   of  marriegSo        And   it    is   unfortunate 
for   the   majority  of  my  audience   that    the   presumption   in   such 
a   case    is    in    ftr.vor  of   the   wanan   and     against    the  man.        Any 
conveyance  by   a   woman  to  the  man  of  her  property  on   the  eve   of 
marriage    is    constructively   fraudulent.      Th3    law  presunes   that 
the  man  under    such    circ  vras  tances   hr.s   an  -influence    over   the 
v/oman  v:lTich  is   undue,    and   that    her   good  judgnsnt  is    for   the 
time  being   sanevjhat   affected. 

DICTATIOII 

There    are    r.ome    cases   v;here    although  no   fiduciary  relation 
exists    th£    courts  will   assume   the  relation  to  be    in   effect 
fiduciary,    and  will    regard  t  ransactionsb  et  veen    the  parties   as 
constructively  fraudiilait.      Vhere    one  party    is    so   situated   that 
his    influence    over  another   is   im  due  (although  not    actively 
fraudulent),    equity  will    regard  the   transaction  bet-^-veen    tliem  as 
presumptively   invalid. 


XIII.  EQUITY     J   U  R   I    S  P  RU  L  E  N  C  Eo    SR  .  50. 

Tlie   relation   of  physician  and  patient,    of  pastor  and 
member   of  the    church,    the  parental   relation— any   relation  in 
fact    out    of  wMch  a   commanding  iuf  Juence    on   the  part    of   one 
party   over  t ifi    other  natural.'.y  grows,    are   the  relations    that 
usually  give    rise   to   the  proceedings. 

75  II, y„    91(    111,    Cases  309) 

2  Chanc.   /pp,    5  5(    Ill„   Cases   330) 
96   Cal-if.    632 

28  Pac.   Rep.    785(Illo   Cases   328) 
147   111,   370    (111,    Cases   324 
35  lToE„    150 
124  Pa.    St.    406 
I  will   now  pass    to  the    third   division  of    ccnstructive 
fraud  as   given  hy  Lord  Hardv;icke, 

DICTATION 

The  third    class   of    constructive  fraud   embraces   those   cases 
wherein    the   transactions   affects  persons  who    are   not   parties 
theretOo        Praud  may  he  presumed  and   a  transaction  will  "be 
regarded  as    constructively  fraudulent  where   its   effect    is 
to   prejudice   inequitably   the  rights   ofthird  parties.-, 

The   case    of  a  husband  c  aiveying  property  to  his    children 
on  the  eve   of  a  second  marriage    in  order  to    cut    of   the    dower  of 
the   intended  v/lfe    is  constructively   fraudulent.        It    a  s  only 
set    aside    so   far  as   her   dower  interest    is    ccncerned,-,      It   v/ill 
remain    as  between    the  father    and    children,    excepting   that  the 
property  v/iii   be    subject   to    the  dovier   interest    of    the  wife. 

3  Del.    Chanc.    99(111.   Cases  350) 

The   most    important    caes   are    those    that   in  vol  ■^'e    secret 
agreements  v.'ith  creditors   in  connection  v;:  "^  h  compromises  with 
creditors,    wliereby   one   creditor,    unci  er    a   secret    agreement,    is 
to  be  paid    in  full  provided  he   v.111   sig-n    the  c  ompr  cni  se . 
Agreements   of    tliis  kind  are    against  public  policy  and  a  re   con- 
structively  fraudulent. 

DICTATIOIJ 

Another    example    is    to    befound  where   ina  conpositicn  v.lth 
creditors,    one  creditor  gets    seci;irity  for  a   larger   aa  ount  than 
another,    in  consideration  of  his  signing   or  joining   in  the 


XIII.  EQUITY      J   U  R   I    S   P   R  U  L'  E  ir   C  E«    PP.       51. 

camproEiise.      A  seciirity   of   that  kind   cennot  "be    enforced,   not 
"becaure   t'-^e  court  has  c  ansiderat  ion    for   the  dehtor,    but  "be- 
cause  a    tranr-action   of   t]-i^,  kind  is    a^^ainst   the  policy  of   the 
law, 

82  :T,Y,.    3Qj(I11,    Cases   344) 
142  N.Y.    404(:flic    Cases   346) 

Another   instance   is    tliec  onveyance   of  property  "by  a 
de"btor  with  irt  ent  to  defraud  his    creditorso 

Pomercy,    vol.    11^    968-973« 
Bisphajn,    240-248. 

I  have   now  discussed  with    sufficient  fullness   as   I   think 
the    time  permits    the  principal   grounds   of   relief   in   equity. 
Other  grounds  v.'ill  undou"btedly  "be  discovered  "by    you,    "but  t  hose 
I   have   discussed    are    the  principal  grounds    of    relief,      Y'e 
have   now  finished  three    of  the  divisions    of  the    subject   as 
it   was   outlined  at    the     beginming  of    tliis    course.      You  will 
rer.-iembffir    that    the   subject   was    divided   into   four   divisions, 
namely:    Ic   Equitable  Maxiins,    II,    Sqioitable   Titles.^    Ill   Grounds 
of  Relief   in  Equity  or  Equitable   RJ.glTts,    IV,  Equitable  Remedies, 
Some   of   the   equita"ble    renuidies    I   have   referred    to 
already    with    salTicient    fullness   to  preclu.de  the  necessity  for 
a    further    considere.ticno      I  ht  ve   spoken   of  the  remedies   of 
Cancellation,    Recission,    Refonnatiun  and  Reexecutioa  and  h^-ve 
spoken   in  a   general  way  of  specific  enforcemente 

There  yet   remains   to  be    coisidered  the   remedies   of   specific 
Perfomence,    Injunction  and  Receivership. 

Under  the  present  arranger.ie  nt  I  take  simply  ths  remedy  of 
Injunction  and  Professor  Buiikor  takes  the  remedies  of  specific 
Perforinr-nce    and       .       Receivf  .shipe 

Before   I   take   up  a    discussion   of    the  remedy  of   Injunction 
I   wish  to  take   up   some    special  heads   of  Equity  Jurisdiction 
that  do  not  propeil.7  fe^ll   under  any   of  the  general  heads    that 
have  been    discusseic 

SPICIAL  !-ffi;Al":   OE  EQUITY  JUrjSEIGTIOlT, 
Eq^uitable   Eoctrine  of  Election^ 

This  doctfj.i.'.e    is    of   c  CT.isiderable  practicable    importance 
in  connection  with  the  Lew  of  AVills,    and    also    as   affecting 
dower   interests      Under  the   old    system  of    equity  jurisprudence 
the  doctrine  of   election  in   other  particulars   v;as   of  more 
importance   than   it    is   to-dayc      I    shall   c  on-'ine  myself    to  a 
consideration   of    tlie   doctrine  as   it    is    in  use   to-dayo 

An  election   in  equity  is   the    claoice   v/hi.ch  a  party  is 
canpelled  to  make    betv/een  property   that  has  been   conferred 
upon  him(usually  by  will)      and   the  keeping  of  his   own  property 
v^ich  the    testator  hcs    assumed   in  his   will   to  transfers    The 


XIII.  EQUITY      J  U  R   I    S  P   R  U  D  E  N  CE.    SR.  52, 

"■or   example,    suppose   A  gi\'e3   to  Bjlsy    deed   or   v/i.!!,    property 
belon^jintj   to   C,    and  by   the    same   instrimient   gives  property 
"b  elonring' to  hinsolf  to   Co      Under   such  circumstances  C  v/ould 
be   put    to  his    election.      C   v/oiald  be    obliged  either    to   trans- 
fer his   own  prq)erty  to   B  and    take    the  prcperty  bestowed  upon 
him  by  A,    or    refuse   to   take   th3  property  bestowed  upon  him 
by  A,    and  keep   his    own  pr-cpc-rty„ 

We  must  undoubtedly  lock  to  the  Roma.n  !law  for  the  origin 
of  this  doctrine.  It  was  sug.^ested  by  the  Roman  Ltw  although 
there  is  nothing  in  the  Roman  law  that  is  exactly  equivalent. 
The  Roman  lav/  upon  this  subjec'^  was  different  however  in  one 
marked  respect,  for  a  gift  upon  an  erroneous  supposition  that 
the  prShperty  belonged  to  the  testator  would  be  inval'.dc  Such 
is  not    tlie   case   in   this    country  at    the  present    timoo 

DICTATION 

Election   in   equity   is    the   choice   v/hlch  a  party   :i  s   c  an- 
pelled  to  ma.ke   betv/een  a  gift   or  bequest   that  has  been  bestowed 
upon  him  and  t lie   keeping   of    sane    of  his   own  property  that  the 
party  making   the   gift  has  assumed    to  transfer   to  anothero 

The    doctrine    of  election  orjgiiiated  in  two   gifts,    one  of 
which  the  pretended  donor  has  no  power  to  maJce ,    there  being  an 
implied  intention  on  the    donor  that   one  gift    shall  be 

operative    only   If    -the   donee  permit   the   other  gift    to  be   oper- 
ative o 

Eor   a  general  discussion   of  the  doctrine,    see: 
Pomercy,    I,    Paras.    461-2 o 
Sn ell's  Equity (Am.   Ed. J    2012c 
Bispham,    Para.    295. 

„_..„-oOo ■ 

IToVo    17th,    1903  c 


XIV.  EQUITY     J  U  R   I    S  P   H  U  D  E  IT  C  E.    SR.  53. 

LECTURE  XIV. 


The   doctrine  of    el-^cti on    in   e^iuity  we,;--,  probatly  "borrowed 
from  the   Roman  Lav/.        There  was    a  custom  which    came    to  he 
a  riile    of  positive    law  a^aon^   Lhe  Rocir.ns   thi't    wi^n  a  person 
had  "been  raede   th.e  h-'^ir   of  another,    that  person  would  he  re- 
quired to   fulfill   all    t:ns   conditiono   imposed   in    Jie   will   or 
to'  renounce    the  priviled^es    of   the   will. 

The    fovuidation   of   the   doctrin :;  of   election   is    uO   he   found 
in    the  presujiied   intention  of   the  testator.  A  party  hy  will 

assumes   to   ,:-ive  property   of    another    to  a    third  p?rty  and  in 
the    stj^.e    instruT.ent    cai£^rs   a  henefit  upon  the   owner   of  the 
prop-^rty  upon  the   a3:.ujned   condition  th^-.t  t  lie   ov.Tier   of   the  pro- 
perty v.-ii;^   transfer    the  pro^jety    to    fie   third  person.      To   accept 
the  henefit s  and    decline  the  hurdens  v;ould  he   to  frustrate 
the    intention   of   the   donor. 

EI  CT  AT  I  Oil 

The   foundation  of    the   doctrine    of  election  is    found  in 
the   presuj'asd   intention  of    the    >  onor.      The  presi'j,!  tion  heint^- 
triat    the   conor   confers    the  henefii: 
sumed   condition   or   intention  that 
shall  he    fulfilled, 

■^  ome  r  qy ,    v  ol . 

Snell's  ""'.quity  ^02 


uii  de  r 

th.- 

will  \ 

/io 

h  the 

■•.re- 

all   of 

the 

te  rms 

of 

the  V 

•ill 

I,    434 

f^r.   Eomeroy    does   not    cltogethsr  agree  v;ith    the   doctrine 
that   the  foundt'tion  or  hr-sis   of   the   doctrine  of   election  is 
to  he    found   in    the  presujned   in  ■;ention  of    .,he  donor.      'le   claims 
th;t    the    rej^l   foundation   of    the    doctrine   is    ixtriei'   fou:id   in 
the  mrxim  of   equity  that    "-le  v;ho    seeks   equity  r.iust    t.o    equity, 

■^lection   is   of   t.o   kinds:    (IJ   Express-.     E.Lectioni  (2) 
Implied  Election,      ^or    exa):iple   a    testator  i'M  y  provide   in  his 
v/i'll   th£t    a   leg   cy    s-hall  passto  a    certe-in  person  'a"'  on   con- 
dition that   he   convey   a  certain  piece   of  prcsperty  to  -notjier 
person  named   in  the  will,      .'.n  election  of    t]r.t  i:ind    is   ;n  ex- 
press  el!-ction,    and   u;on  failure   to  convey   in  accordance   with 
the    stipulation   of   the  will    a  forfeiture    shall   result.  Eut 

sue'-    is   not    the    result  where   the  election    £?•  ov;s   outof  an   im- 
T)lied  duty,    for   the  person  ^"ho   fails   to  respon^;    to    that   duty 
does   not    n?cessarii;^''   lose    the    eiitire   benefit   that    is   besT.owed 
upon  him,   hut    only   so  mucSt  of   it    as  v/ill   c-mount    to   canper.sat- 
ion  to    Lhe  party  who   is   disappointed  hy  his    failure   to  con-v-ey 
hi'   property  in   accordance    v/ith    the    imjolied    conriticn.      The 


XIV.  ?  q  U  I   T  Y     J  U  R  I    S  P  K  U  D  E  J  C  E.    sn.  54. 


refractory  donee   is    entitled    to    such  b  enefits   of  the  vill   as 
is  not   necessary  -.0   ccnpensate    the   disappointed  party  under 
the  v/ill   by  the   failure    to   convey, 

I^ICTAT  10:7 

T.iBFJZ  AEE   T\-iO  "DIDS   0 J  ELECT  10?.::    (1)   where   the   condition 
in   the    instrir.ient    is    expressed.      Mere   a  failure   to    cornly  v/ould 
result    in  a   forefeiture.    The   other  kind   of   condition   in  the 
instruraent    (2)    is   implied.  here   a  failure    to   respect    the 

condition  does   not   work  u    forefeiture    or   ;:;ecessarily   result 
in    taking  away  from  the    refractory  donee   all   onnefit   under 
the   will. 


76   Va.   639(111.    Cases    120)^ 


E^ITICT    /JijJ    SCOPE   or   jjOCTRI:!!^   op   EL'-CTIOr. 

Pir^t    I  v;ish  to   suggest   that    v/henever  a  pcrty  is  put  to 
an  election  there   always  t'"'0    courses   open    to  him.      /.  gives   to 
B  property  helonr,  in  j  to   C   and  "by  tlie    sane   instrument    ^ives    to 
C  property  le  lon,.,ing   to  himself.      iTov/     the   tv/o    courses   t}u;-t 
are    open  are    these:    (l;    C  may   elect   to  talce  under   fue   instru- 
ment.     If  he    does  this  he  must    ohey   tlie    implied    concition  of 
the    instrument.      If  he    takes   the  henefit   and  neglects    or  re- 
fuses to   convey,    equity,    at    the    suit    of  the  party   entitled  to 
the  "benefit,    can   conpel  him  to   convey.      (2;   "Te  nhj    elect   against 
the    instrament.      If  he    retains  his    ovrxi   estate,    does   he   foreieit 
ohe    entire   benefit   conferred  upon  him  by  the    xnstniment?  Hot 
necessarily.      Of   course   he    would  forfeit   the    entire   benefit 
if    the  value    of  tlae    estates  v/ere    ex".ct  ]y   the   same.      lut   where 
he    elects    against    zlie    instrument   he    still    takes   the  property 
that    is   v.'ill   to  him  under    the    instrument,    and  he    takes    it   b^/ 
virtue   of  the    instrument,    for   if  he    did  not    a    forefeiture  would 
take   plrce,    and    -^^here  would   be  no    vjay  of   compensating   the    other 
party  v.hom  the    instrvYaent    is    intended  to  benefit.      The    implied 
condition   in    ttie  -.vill  makes    it   necessary   for  himto   confirm   '.he 
V7ill,    or   else    out    of    :he   testator's  property  given   to  him  by 
the  v;ill  make   adequate    canpensation     to    the    third  person  v/hom 
his    choice   has   disappointed, 

Put    if   the   value    of   the    legacy  is    greater   than   the  property 
\7hich   the    testator   assumes   to   dispose   of,    the  party  to  whom 
it    is    given  vrill   generally  elect   to  take  \inder    the  instrument 
and    to    convey    av.'ay  his   ov.ti  property   in     accordance    ;7ith  the 
terms    of   "he    instrument,      "^ut    sometimes   for  reasons    of   senti- 
ment   a  party   chooses  to  keep   'lis   ox/n  property,        vrnerx  he   does 
this    the    devise    or   legacy    vests    in  hin  exactly  the  sane  manner 
as    if  he   had   chosen   to   elect   under    the   instrument,    not   absolute- 
ly,   but   as   trustee    for    '.he  benefit   of   the    disappointed  party 
to    the    extent    of   aaequate    coiapensation.      The   court    in  the   lan- 
g.-language    of    Jie  cases   sequestrates   the  property  u:itil   com- 
pensation  is  given. 


XIV.  E   Q  U   I    T   Y     JURIS?   R  U  L  J]  IT  CE.    SR,  55. 

r.ICTATin;- 

In   case    of   an  election   t\-o   courses   are    open(l)    the  party 
.may   elect   under     he    instrunent.      In   suchc.    case   he    is   bound  to 
carry  out   the  t  ems   of  "^he    inptr^xient   c.^.r    c  cn-^ey  his   o\<n  pro- 
perti'   in   accordrnce  v;ith  its  terms   rnd  directions.      If  he 
accepts    the  benefits    and   refuses,    a  court    of   equity  v;ill  com- 
pel hiin  to   convey.      (2}    Iha   election  ^aa^'  be   against    the   int^-tru- 
ment »      If   the    concition   is   an  implied   one    it    v.ill  not   under 
such  circumstances  v/ork  ?    forfeiture,    but   the    refr^.ctory   donee 
takes    til e  title   to    the  prqe  rty   for    the  purpose    of   enabling 
the   court   to  av;ard  covipensation   to   the   disap'^ointed  party. 
Anything    over  and   c.  bove   full   c  aapensation   reuains    "-jyie  property 
of    the  refrrctory  donee. 

Law  Rep.    3   Chan.   T-iv,    6£6(    ill.    Cases    128} 

The    illustrations   that    I  hr -.^    thus  far  gi'.-en  are    of   t:ie 
most    simple   foi-m.      ^^ut    often   tJ'.e  ft:cts  are    c -xiplicated.      In 
such   ca.ses   tiie    difficulty  is   not    in   reqvlrinLr;   how  t'-e    election 
and  t'T  e   rif^hts   of   the  parties  sh>r.ll  be  determined,    but    in  de- 
ciding v/hether   or   not    the   doctrine   of  election  should   spply.    'e 
shall   be    o.ssisted   in   our   inquiry   for  an   exar.iinat  ion   of   certain 
fundamental  principles, 

GEl^^R/i  PRI::C IPLE S . 

Tae    first    of    these    th&t    I   clesire    to    call   ^our 
attention  to   is   t'lis:      An  election  cm   never  be   necessary 
excepting  wl^ere   a   party  has    affected   to  dispose   of  property 
v;'_ich  is   not   his   crn,    ind  his    also   :,ic  de    a  valid  i^lft    of  his 
O'-.Ti  property. 

The    intention  to   dispose    of  property  beloncin-;,    to  another 
must    appear  upon   the  f;  ce    of   trie    instrument ,      You  must   find  f-ia 
intention   v/ithin   t'le   four   corners    of   '..he    instri-iient ,      I    oo   not 
mean  by    this    statemeit   to    convey    the   impression   tJiat  parol 
evidence   cannot   be    resorted   zo   at   all    in   cases    of    t-iis   kind.   You 
m.y    shov/  by  parol    evidence   tine    situation   of    the  parties,    the 
relation   of   the  parties,    the   condition   of    the  property,    any- 
thing   in   fact    that   \-ill    serve    to  put   the    court    in   the   shoes 
of    the    testa,tor   et    the    tine   he    executed   the  instruinent .      "Parol 
evidence   ccnnot    be   iritroduced  for   the  purpose    of    s'lovdn,,^   the 
intention,    but    only    for  the   purpose    of   shov/ing  the    condition 
of    ':he  property,    the    relation   of    tlie  parties  and  the   incic'ental 
matters    of  that   kind  that    tend  to  place    the    court    in  the  posit- 
ion  of    t]^    testator.      The    inte'ition   of  the   testator  irrast   be 
gathered    from    fae    instrument. 


"T. 


I  CT AT  ION 


riLTAJT^YTAL   PKI".'CIPIES . 

(Ij      There    cr.n  be    no   election  unless   the  party  has 
affected  to   dispose    of  jn-op  erty  tliat   is   not   his   ov.n. 

Law.    Rep.    3   j^q.    Cases   244 
(2)      The   intention   to   dispo-ce    of  property   not   his    ov.n 
rraist    appee^r  upon    tlie  face    of    -iTe    instrument.  "^arol    evidence 

may  be   used   for    tlie  purpose    of   showin^-    ,]ie   attitude    of    r,he 
parties   end    of   the  prop  •3rty--in   t    v;ord   the  putting   of   th-^   court 


XIV,  E  q  -J  I  T  ■/    JUKI  s  p  r:  u  l  ::  i:  c  e.  sr.  56. 

in  the  position   of  the   test&tor.      But   not    for   t.'.e  pv-rpose   of 
rhov/ing  his    inte-.tion   in   rej^ard    to  the  disposition   of   the 
others  prooerty, 

41  /rk.    64(    111.    Cr.ses   125) 
Ref  d  and  prepare    for   ex&  rrinat  ion. 


In  illustration   of    this  first   principle   take    the  case   of 
a  hushand  devising   lands   free    of   his   \7ife*s   dov/-er.        The  hus- 
hand  has   no  pov;er,    generally,    to   cive  away  his  v;if e '  s   dov;er. 
In  "Rnrjland  and    in  sane   of  tie   states   of    this  country  tjie  law 
in   this    respect   has  been    chcn;^ed  hy    statute,    hut    in   t}iis   and 
most    of    the    states    of   the   union  her   dov/er   interest    is  an   in- 
terest  that    cannot   he    reached  hy  ar^  action  on  the   part    of 
her  hushanda        T.he   hushand  conveys    land   to  a  stranger  and  '.  5.:,. 
the  terms    of    th3    convey Eiice    is    such  that   the    ri^ht    o±    the  wife 
to   have   dov/er   in  th.e  premises    v.-ould  he   inconsistent   'vith  the 
grant.  It    is   not   expressly    stated   that   the   devise    is  to 

he   clear   saic    free   from  the  wife's    dov/er,   hut    for  example,    the 
devise    ,    hut  he    says   tr^at  the    devise    is    to  he   free   and.   clear 
of  ail   Ca.aims,      or   that   he  may   dispose    of   the  propert:^-   in 
a    certain  v;ay,    tiaat   he  nay  dispose   of   the   incaie   in   a  certain 
Y.'ay,      The   use    and  disposition  of   the   income  heing   so   arranged 
that    it    \7ould  he    impossihle   to    cari-^^  out    the   terms    of   the 
will   if    the    vdfe  were   to    enforce   her   dov/er   interest.      In    this 
same    v.ill  prq^erty   is   devised    to   the  \7ife,    hut   the    instrument 
does   not    state    that   it    is  to  he    in   lieu  of   dov/er.      In    such  a 
case    the    v.lfe    vjould  he  put    to  her   election.      She    could  not 
take  hoth  under  the   will  and  her   dmfer  interest,        ii  There 

is  always   a  presiinption   in    favor  of   the  wife's    dov/er  and   if 
her    dower   is   tal:en   away   so   that    she   is   canpelled   to   elect   he- 
tv/een  the  tahing  of   the  provision  made    for  her   in    the  v/ill  and 
her   right   of  dower,    it  must    appear  upon   the  face    of    the   instru- 
ment  that    the    scheme    of   the   vdll   is    entirely  inconsistent  with 
her  right  to  cl^^.im    dov/er.      The   condition    that  tlie   v;ife  he  put 
to   her  election  must   he    so  clearly   expressed  as    to   overcome 
thJ-S   presumption   in  favor  of  dower.  This   matter   is   very 

nicreli'-  put    in  the  case   of 

104  ",¥,    125 
v/here  Andrews,    J,,    in  delivering  tlie   opinon  of   the    court   said: 
"There    can  he    no   controversy  as    to    the    general  principles  gov- 
erning the    question  of    election  between  dower  and   a  provision 
for   the   v.i.dow  in    tlie  will.      Isower   is    fr.vored.      It    is   never 
excluded  hy  a  provision  for  a  wife    except  hy   express  v;ords,    or 
hy  necessary   Implication,      YvTiere   there   are  no   express   v/ords, 
there  must   he,    upon  t  ::e    face    of  the   v/ill,    a  demonstration  of 
the    Intention  of    the    testator  tliat   the  v/idow  shall  not   take 
hoth  dov;er  and  the  provision.      The    will  furnishes   t'nis   demons- 
tration  only   when  it    clearly   spears,   without   arahiguity  or   douh-^ 
that    to  perT'-.lt    the   widow  to  claim   both  dower  and   th^e   pro\i.sion 
would  interfere   v/ith  the   other    dispositions,    and  disturb  the 
scheme   of   tte    testator  as  manifested  by  his  will.      The   intet- 
lon   of   the    testator  to  put    the   widow  1 0  an  election  cannot   be 
inferred  from  the   extent    of   the   provision,    or  because    she   is 
devisee   vmder  the   v/ill   foi"   life    or   in  fee,    or  because    it   ra,y 


XI^'„  EQUITY      J   U  R   I   S  P  R   U  D  E  r  C  T.^    SR  .  57, 

seem  to  the   court   that    to  permi.t    the   vridow  to   claim  both  t":e 
provision  and    dower  would  be  linjust   as  a  family  arran  je:.ient; 
or  even  because   it  may  be   inferred  or  believed,    in  viev;  of  all 
the    circuristances,    that   if    Aie    attention   of   t}ie    testator  had 
been  drawn   to    t}je   subjectj    ha    '.rauld  hxve    axprossl.y   excluded 
do v/e r c      ^v^ rep eat^  ^tiie^  only  sufficient   and  _ade^(juate    dainonstrr tion 

\7h.ich,    in    the   absence    of'  cx^i-ess  'v/or'ds,   v/i_ll  put   the  v.adoj.v 

to  her  "eT"c-ct  ion,  is  "a"  cl  ear  inconi"p~at  ibi lity  ar is ing'  on  the  .f'J^.®. 
£-^  i:b®_Ji'':Ai_]i^:E?.£Ii  ,a^,  ,p.^.''f'\  Q^  dov/er  c'.iid  a  cla-im  to  _theJJO^l_e_fit 
^inn^'by"  the  vii'llo*'  -    -        —        •  - 

DICTATIOIT 

There    ie   a  presumption  in  favor  of  dov/er   tl:at   in   the   ab- 
sence  of  statute  mast  prevail  unless   it    is   overcase  by   the 
eaqoress   o^   inyjlied  intention  of    the   testator 

to   be    t^-'thered  fro:ji   the    language    of    the   instrument  j    togetlier 
V/ith    the   fact    that    to  allow  dov;er  vjoald  interfere   ■.:x'li    the 
sceh.eine   of  the    willo      In  order    tiie  the  wife  hilo^  be  put  to  h=r 
election   it  must  not    only  appear    t'>at  the    intention   of  the 
testator   is   that  the   prcrlsion   of  tl^   v.lll   should  be   in  lieu 
of   dov;er.    but   also  that  the   provision   in  the   v;ill    is   absolutely 
incansistent   v;ithher    dim  of   dov/e.T'o 

104  "oYo    125 (    Ill„   Cases   129) 

Pomerqy  Vol,    I-    493 

113     ToYo   232. 


It   is  a  matter  of   no   importance    in  a  question  of    this   I:ind 
vhethe  r  or  not    the  provision  m:de    for   the  v.  if e   in   the   '.ill 
is   at    bll  adequate.      It   mtv  be   very  much  less   in   Vc  lue   than 
her    dov/er  Interest  o      It  may  be    entirely  inadequate   for  her 
Bupporto      The  wife  may    electo      If   it    is  not   an  c^dequc^te  pro-isi- 
on   for  h.er   suprort;    she  has   the    rijht   to    take  her   c  0'.;er   in" 
terestj    because    slie  cannot   be    ..ep rived  of   it   v/ithout   her  con- 
sento 

dict;.7I0j: 

It    is   a  matter   of  no   importance    tint   the   provision  made 
for  the   ••■  if e    in   the   v/ill   is   not  adequ  ate<, 


:ovo      23rd,    1903o 


XV.  :i;  Q  r  I  T  Y    j  u  ?  i  s  ?  r  u  d  2  r  c  e    s  r.  58, 

L  E  c  T  u  r.  >:    XV. 


You  ir.ust  now  v.nd e rs t ar.d ,    I   think,    the    'general   rule  "by 
•vvhich  the   v/idow's   election  in  dov^er   cr.aes    io   to  "oe   'governed. 
There  are,   hov/ever,    certe.in  special   rules   to  ^ich   I  must   call 
your   attention.      Bj^  rneans    of   t'ese  special   rules   we   C£.n   ..eter- 
rrdne   in  .iiost    cases   whether   or  not    there  is    ?.n   inconsistcr.cy 
betY/een  the  claini  of   rlov/er   interest  "by  the   -.Tidov/  a.nl   the 
receiTinj  by  her  .of   the  benefit  provided  for  her  in  the  vill. 
There   are,    you  see,    certain  situatior-s    that   the   courts  h':.TO 
passed  upon   in  regard   to   t^iis   ratter  yf.^ere   the  rule  has   bccorr.e 
a  definite   one,   and   it   is   'i^cll  for  us    to  hare  these  speci?.l  and 
definite   ruxes    in  r^iind. 

sp:::ciAii  Rui::s  as  to  dcy/er: 

I?  A  Tl^STATOR  SIT'^^Li   D^'IVISZS  A  P^J-'.T   Oj:'   ?IIS   ESAL  3S-.'.TE 
that   is   subject   to   dover   to  his   widow,    and    "^Ives   the  res:      of 
his    real   estate  to   sorr.e  one   else,    usin^  lan;-aa?;e  subs tar.ti ally 
the   equivalent   of   that  ?.ere  i:isei,    there  will  be  no   case  for 
election;    t":e  Y;-iiow  -vill  not   be   corr.pelled   to    elect.      Vifhf i  e 
there    is   a  simple  devise  of   real   estate   to   the  widow  ani  a 
si^.ple   ;];ivin^  of   the   rest   of    the   real   estate  to   son.eone   else, 
the  courts   say  that   the  provision  of  this   hind  is   not   incon- 
sistent  with  the  clair.  of   the  widow  for  both  her  dOY/er   interest 
anj    the  provision  r.:ade   for  her   in   the  will. 

Dictation. 

(1)  ilo  election  w>ere  there  is  sirr.ply  a  devise  to  t  ■' e  wife 
of  a  part  of  the  real  property  sund  a  devise  to  some  ot^er  person 
of    the    rer.jiinderc 

Pomero",    Ic,    ^:>e.r.    437   or  497. 

7   Cow.    237 

9  IT.    Y,    502-11. 


'    Here   is   a.notrer  situation   that   tl'e   courts   .  -..ve  passed 
upon,    altho  urTf ortraiately  tney  are  not   all  a-reed  as   to  what 
is  the   ri^Iit  iioldin^:      Suppose   that  a  m^in  devises   to  hio    'jyife 
a  life   interest   in  all  his      real  property,    or   levises   tl.  e  use 
of  his    real  property  to  her  so   lon;^  as   she  may  remain  a  wi^.ow. 
Under   these  circursta-nces    is   she  put   to   an   election   as  between 
that   interest   and  her   dOY/cr   interest?      It   would  seem  that   the 
holdin-^  Of   those   two   estates  by   the  seme  person  wouli  be   incon- 
sistent,  but   you  mi:st   remember   this:    that   ecuity  rail   always 
prevent   a  mer'^er  w'lere   the  parties    intend   tl:at  no  merger  shall 
exist.      And  where  a  rier-^er   woi^ld  worh  inecuitr.bly   (accorlinj  to 
the  weir^ht   of   authority,    probably)    the  wife  unicr  such   cir- 
cumstances  would  not  be  put   to  an  election;    s'le  would 


T^r,  ■?   C   U   I    T  Y      J  t:  R   I   S    P  R  U  D  J]  TT  C  IC      S   R.  59. 

OS   permittel    ("by  virtue   of   tlie    r^eneral  pre^^iirnption   that   I 
tried   to   explain   to  you)    to   clair.  bot^i  life   estates. 

You  iRlll   naturaD, ly  ask  the   question:      HOW  COUTJ)  SliE  CLAIM 
:'Ox'H?      Of   course,    she   cannot    enjoy   the   dov/er   interest   so   long  as 
■"  e   is    enjoyinn;  the  conventional  life   interest     -iven  her  'oy 
t'-'.e  v/ill.      But   suppose   t'.at    conventional  interest   proves    irreg- 
ular  in  sorre  '.vay,    or   suppose  she  forfeits   the   i. . teres t — t^ien, 
of   course,    sl^e   could   enjoy  her   lep;al   e£.tate.      Or  if   the 
devise   is    to   t"-e   wife  so  lon/^  as   she  r;-;ay   rer.ain  a  -v/iiow,   her 
estate  v;ould    corr.e   to   an    end  upon  a  siV3seqi:?nt   ''.".arria~e — ^er   dower 
interest  would   then  take  effect. 

THAT  IS  ACCOKDrJ^  TO  TIS  V/EIGIIT  OP  AUTYOrJTY.  Accordin™ 
to  son^e  courts,  hov/ever--T?articularly  the  ITew  -Jersey  courts  — 
she   is   put   to   an   election  in  such  cases. 

Dictation. 

(2)      Accordin^-^  to   th.e  v/ei.-^lit   of   authoritv,   prooahly, 
a  TiEVISi:  or  A  LI5^  SSTAri:   in  all  of    the   testator's    real 
property  to   the  wife,    or   of   an   interest    to  X/^T  DURr.TO 

ISR  ".7ID07.1'00D,    v/oull  not    oe   inconsistent  '."itii  her   clain 
of    iO';7er, 

5   Hill   9.0o  10  Pai~e  Ch.    235 

Porieroy,    I.,   Para.    547. 
Contra:        Ste-r!::  v,   Plunton,    Sarctoa    (i7.    J.   Zq.)    217. 


Here   is    another  situation   t/.at  has   been  passed  u'oon  'ay 
the   courts:    property  is   DEVIS:i:D  OR     D-'^iDED  TO  TRUSTEES  ".TIIH 
PO'.'.'?]R   to   sell.      Is    a  devise   of    thiat   kind   inconsistent   with 
the   claim  to   dower  on   tlie  part    of    t]:e   widow  wiiere   there 
ho.s  "been  a  pecuniary  or  oti.er   provision  made   for  her  in   t}ie  will? 
It    is  held,    I   tiiink  without   exception   tra  t   tl:e  v/idow  uni'^r   such 
circurrstances   :r5.y  claii:;  dower  AITD  the  provision  made   for' her 
in  the  will;    that  where   the  oower  tliat   the  trustees   hr-.ve  is 
simply  a  pov/er   to  sell,    it    is   not   inconsistent   with    tl'e   claim 
of   dower   on  the   part    of   t}-.e  v.'idow. 

Dictation. 

(3)  A  DEVISE  TO  TRUSTEES  TO  SELL   simply,    a  provision 
havinp;  "been  made   in  the   will   for  the  v/ife,    is    r.ot    incon- 
sistent  with.   ■c:'e  wjdo'.v'o    claim  for   dower   in   the  same   land. 

3  Eare    (En^.    Ch.)    310  3  Pai^e   Ch.    S25 

2   .Johns  .    Ch .    448 . 

(4)  WHERE,    rlO^^VER,    ThS  TRUSTEES  HAVE  DUTIES    TO 
PEF.EOKM  that  call  for  full  control   and  m.anac^ement   of   tiie 
legal   title,    a  -orovision  havin^":   been  made   for  the  v/ife 
in   the  will  SHEETS   PUT   TO.  K-^R  ELECTIOiT.      /Jid   fne   ss-me 

is    true,    generally,    v^.erever  special   directions  have   oeen 
given   to   a  devisee    (whef.-er  as    tr-.st'-e   or  not)    as    to    the 
use   and  managem.ent    of  property. 

Goodfellow  V.    Ooodfeliow,    13  3ev.    355 
Thompson  v.   Burro,   L.    ".    15  "'c.    C-s.    ;r:.  2. 

4  Eev.    103.      


:a^  2    q  U  I  T  Y     J  u  r.   I  S   P  K  U  D  E  IJ  C  E       S  R.  60, 

STATU'JOHY  MODIi'ICATIOlTS   0?  SIZCiI01I.~In   order   to  prevent 
any  misunderstanding   I   should  nov/  suggest   that   dor.-er   and  the 
dootrine   of   election,    so  far  as   connected   tliere-.vith,   have   in  a 
fov7  of    the  states  been  considerably  clian/^ed  "by  statute.     And  now 
rii-^it  l.ere  I   wint  to   say  to   you  that   if  you  are  wise  youji--^  men 
you  will   GO  TO  YOUR  STATUTES   and   consult   them  upon   this   question 
of   election  in  dower  cases.      '.Ve  will   tsilce  the  y.ichigan  stat- 
ute  as    an   example.      ITo^v  remeriiber  first    that   I  have   said   to 
you   that    in   every  caye  V^iere        a  husband  rra'-ces   a  provision  for 
the  wife   in  his   will    it   is   presu::-.ed   to   oe   III  ADDITION  to    the 
dower   interest,    and   in  order  that   tiie  v;ife  r:.s.j  "be  put  to  her 
election   it   must   appear  "oy  unequivocal   lan-^uare   that  he   intends 
the  provision  to  "be   in  LIEU  OF  DOVvER   and  not    in  addition 
to   dower.      In  a  few  ox    the   states   this   presumption  has   ""oeen 
exactly  changed  \)y  sta,tute.      The  Michigan  statute  re-.ds :       'If 
any  lands   "be  devised  to   a  woman,    or  other  provision  be  m.ade 
for  her   in   ti:e  v/ill  of  her  hus"band,   she  shall  make  her   election 
v5. ether   she   will   tahe   the   lands    so   devised   or   tlie  provision 
so   ;rade ,    or  v^ether  sh-e  will  be   endov/ed  of   the  lands    of  her 
husband;    biit   she  shall  not  be   entitled   to  both  unless    it 
plainly  appears   by  the  will   to  have  been  so    intended  by  the 
testator.'      That   just   changes    the  presumption   ri'3ht   around. 

Dictation. 

In  several  of   the   states  you     will  find  a  STATUTORY 
PROVISIOIT  THAT   CKAJ)TGES  RADICALLY  T'ffl]  EQUITABLE  PPJ;SIP':PTIOI:T 
th£,t   the  provision  for   the  vvridov/  is    intended  to  be   in  addi- 
tion to   dower.      These  statutes   provide   that   a  devise 
or  bequest   to   the   wife  shall  be   deemed   to  be  in  lieu   of 
dower 'unless    it   expressly  appears   upon  the  face  of   the 
will   that    the  husbf'iid   intended   the  mfe   to   take  both. 

!.:ich.  Com.o.  L.  '97,  Para.  G937:>-6; 

Reed  V.  Dichem^^.n,  29  Pick.  1-16;  12  Pick  145; 
(111.  Cases  in)  . 

Pomeroy,  Vol.  I.,  494. 

There   is   another  matter   in  connection  with   this  statutory 
chanfre   that   you  should  have   in  mind.      These  3tatutr;s,a3   a   rule, 
provide  a  certain   time  within  which  t'le  v/jdow  m.UvSt    elect   whether 
she   will   take   the  provision  mxide  for  her   in   the  v/ill  or  v/hether 
she  will   take  h.er  dower,    and  they  usually  provide   that    if   she 
does   not  proceed  within  the   tim^e   specified  by  the   statute   to 
have  her  dower   assi'-^ned  or   to   take  m.e^-.s'.'.res   for    the   recovery  of 
her   dov/er,    then   she  will'^oe  deemed   to  have   elected   the  provi- 
sion made   for  herin   the  will.      If  she     tal<es   no  steps   at   all 
for  having  her  dower   assi^^pied,    then  slie  is,   under    the  statute, 
TDresuT.ed   to  have   elected   in   favor   of   t}:e  will, 

THE  LilCHIGAiT  STATU'ZE   reads:       'TiTnen  a  widov/  shall   be   enti- 
tled  to  an  election  under   either   of   the   two   last  preoedin-; 
sections,    she   shall  be  deemed  to  iiave   elected  to   take  such  join- 
ture,   devise   or   other  provision  unless,    wTxJ'.KT  0:13  h'^AR  after 


XV.  .^    q  U    I  T  Y  ■  J  TJ  R   I   S   P  R  U  D  E  :•   G  ."     SR.  61. 

t'-.e  death  o*  '-.er  Ijisband,    s'.e  shall  commence  proceedin.^3   for 
the   assigrur.ent   or   recovery  of  her  dov/er.     ITov/  in   this   sta.te 
this    election  of   the  widow  is  usually  riide,      not  "by  any  fornial 
proceeij'nf^s   for   the   assi-^niuent   of   the  dower    (becai^se  in  r.ost 
cases  dower   is   a.=3signed  wit!  out   any  foi'mal  proceedings,    at 
le?.st    of  en   adversary  chr.rccter)  ,    but  by   indicatins  in  vrritin'5 
(no   particular  fonn  need   oe   followed)    in  the  probate   court   tliat 
S'-.e   elects    to    take  her   dower,    or   that   she   elects   to   ta2-:e   tlie 
provision  under   the  will.      Now  if   she  does   not  :..ake   this    elec- 
tion within   the   time  provided  by  the  statute,    the   result   is 
liable   to   be   serious.      So   far   as    I  heive   observed,    the  question 
has   not  been   passed  izpon   in   tiiis    state,    but    it  has   been   ;,.as3ed 
upon   in  a   recent   case   in  Hew  York,    v/here    tl: e  statute   is   exactly 
the   same  as    ours  j    and   it    is  held   in  tl-.is   case  t^iat   this  stat- 
ute  is   a  statute   of   limioation   and   th^it   if  tiie  widow  fails    to 
rr.ake  her  election  ''oy  proceeding  to   rret  her  cower  within  the 
year  fixed  by   statute.,    she    is    cut   off  from  the   right  to    do   so 
in  the  future.      In   t'r.at   case   the  v/idov:  was    '.oceived  as    to 
the  value  of    t3ie  property — not   purposely  deceived — by  sorie 
representations    iimocently  rade   to  her  by  t/.e   executor,    sjid  the 
value   of    the   estate  was'  not   knovm  to  her  until   after   the  year 
had   ela,T)sed,    and   then  she  decided   to   c/.ansre   and        t^.ke  her 
dovrer   interest   and  atten:pted  to  rriake  her   election.     2ut   t'le 
court   said,    'No,    this    is    a  statute  of  limitation,    and  you  are 
boujid  by  the    letter   of   the   statute,  ' 

Dictation 


Under   the  statutes    in   several   of   the   states    the   ecuity 
presirrptl  on   in   regard   to    the   intention   of   the   testator  has 
been  changed   and  a.  provision  for   the  vrife   is   Iield  to  be   in 
lieu  of  dower  unless   a  contrary   iiitention  plainly  appears 
upon   "fi'.  e  face   of   the  will. 

Michiigan  C.    L.  ,   Para.    8935 

Under   these   statutes    the  widow  JiUST  rAl'Z  IZ"1R  ELhiCTIOlJ 
"\7ITPII1T  THTil   TT!?]  PROVIDED;    otherv:i3e   she  v^ll  be  deerved 
to  have   elected  the  provision   in   tl-. e  will.      The  statute 
is   0:iE   0?  LILIITATIOIT  AlTD  v/ill  be   strictly  construed. 
Aiken  v.    Kellogg,    119  N.   Y.    441. 

Now,    in    the   p.bsence   of  a  statutory  provision  requiring   the 
widow  to   elect   within   a   certain   tiir^e   specified   the  V/IDO'.V  HAS  A 
F-SASOi'TABD^  TIMS   within  which  to   r.iake  her    election.      What   is 
a   reasonaole  time,    of   course,    depends   upon  tl:e   circu-Tistances    of 
the   case.      Three,    five,    or   even  sixteen  years  have  been  held 
to   be  a   rea.sonable    timie  under   the   circi;:rstances .      These  were 
all  English  cases;    I  have  not   found  any  Ar.'.erican   cases    in^vhich 
the  question  has   been  passed  upon.     As    a  rratter   of   fact,    in 
^ost    of   the   states,    even  where   the  funda-.ental   doctrine  has 
not  been  changed  by  statute,   you  will  find  a  statutory  li-^-ita- 
tion   of   the  time  wL  tli  in  \7hich  the  widow  ray  elect,    and  that 
statute  must  be   strictly  folio-red. 


y?j.  F.  q  u  I  T  Y    J  ij  r.  i  s  p  r  u  d  e  :i  c  s    s  r.  ca. 

Dictation. 

IN  TK::  A-S:CIIC.::  OF  A  S'lATJJOKI  PROVISIO'  upon   the   sub- 
ject   the  TOdovr  has    a  reasonaole   time  within  v/hich  to   elfrct, 
ani  what   is   a   reasonable  tiire  v/oull  depend, of   coTirsejUpon 
t":e  circvjnstances    of   f:e   case,, 

Walce  Y.   V.'ahe ,    1  Ves .    335; 

Rej'nari  v.    Spenco,    1  Scv.    103; 

30  3ev.    235. 
But    in  the   aosence   of  statute   the  Dart'^  HAVITTG  TTT.'^ 
RIGHT   TO   C0lt?5L  A  li  ELECT  ION  is   not   cut   off  bj  delaj^  as    a 
rule,    in   the  absence  of   intervening  ri  vits    of   t"  ird 
parties . 

Pomeroy,    I.,    Para.    513. 


0^0 


yoverr>ber   21,    1903. 


'T.  ^   ^   U  I   T  Y     J  U  P    I    r.  •-'   R  u  j^  -  -  C  E      5?..  CS 

I.  H   C   T        R  ::     Z7I . 


j"  t   t'  e  close    of  tlie   l^^st    lectixre   I    \.x..s  c   llin,.:   your  atten-. 
vion  -co   tlie    eouit-'ble   doctrrae  of    election   in   camection  v;ith 
cov/er   ct-.Ees.      I  hi'.d   said  tlr^.t    in   the   alosence    of  c-.ny   stt. Tutcry 
T-rovision,    the  pres-u-np-.ion   is   that    if  a  huslaand  rashes   a    -re- 
vision for  ]iis   v.'ife    in  his  \;ill    it    is   his    intention    tH.t   she 
shell  have   tliat   provision   in  adcition  to   her   dcver    interest 
in  the  property,    and  that    t]E.t  presumption  can   only  he  over- 
come hy    its   cppearing  t'E-t  his    inte;ition  w&s   the    opposite   £..nd 
thi:.t    any   ot}Ter   construction  would  he   contrary  to  the  real   scheme 
of  the  will.      I   also    said  t  ^-E.t    in  a  few  of  th^    states    statutory 
'.".en   es   liar,    heen  ri?.f."e.  '.  uch  statutory  provisions  prc"ide 

t'lf.t   v.here   a  provisio:i   is  mt-de   in  a  hr.shr-.nd  •  s   will   for  tl^e 
v/ic'OT;,    s-ie   is   hound  to    elect    \/het?ier   she    sixall   elect   to  tahe 
under   t:i3  v/ill    or  to   tahe   \w]\!..t   the    stat'ote   allows   r.er,    hut    she 
cannot    t-.  he    ccth  unless    it   plainly  appears  upon  the    face   of   the 
\  ill  to   Iiave   hesn  the    intention   of   the  hus^nanc;    t }■>£■■:   rhe    should 
have  hoth.      T-.e  presunption   is   just   the    conb  rary  to    the  pr4- 
svjnption  v/here   no    statute   exists.  I   also    said    that  tender 

these    stc.tutes    the   widov.'  must   nahe   nsr    election  vritliin  t::.e 
time  provided,    otliervvise    sh.e    v.ill  he  deeried  to  have    elected 
t.he  provision   in   tie  will.      The    statute   is    one    of   linitation 
a-'id  must   he    strictly    CEnstrued.      In  tlie   a'oserice    of   t    statutory 
provision  requiring;    the  v-ic'ov;  to    elect   witrln  a    certain   tirie, 
f^e   v/idov/  h;  s   a    reasonable    -Arne   wit.'un  wliich  to  :;iahe   her   elect- 
ion,     ''hat    is    D.   reasonable    tie,    of   course  -as   in  all   ot:ier 
cases,    depends   upon   the    circ  unstences   of    ecc  li  particu.lrr    case, 
''nat    is    a    reas  onahle    tine    depends   ur-on    t-^3  c  i  re  urn  st  aic  e  j^    sur- 
rounoiny  the    estate   and   the  parties    interested    in  t}ie    estate. 
In   the    ahsence    of    statute   t  h-e  pj^rty  havin,;.   the   ri^yht  to      c  aii- 
p^l  tn  election   is   not   as   a   rule    cut    off  hy  delay  v/iiere    the 
ri.f-.ts    of    third  parties  Ii.  ve  not    interve.-'.ed. 

In  these    dov.'er    cases   t;\e    i?;terest   tliat    is   affecied  hy 
~h--e  v,'ill    of   the  hushand   is   a  partial   one    ?.o   far  as   z".:e  "-Lushcnd 
is    cc::cerned.        ^'hen  he  presumes   to   c  Oiivey  avay  hy   v/ill  pro- 
perty  in  T;in.ch  his   wife   has   a   -  ower   interest   he    is    ceulin;  with 
property    in  vhiich  'le   h^as   an   interest   and   in  v/'d  di  'lis   vlfe   lia.s 
rn   intere-t.        In  svich  ci'ses   -here    the    testc-tor  has    only  a 
pi.rtial  interest    in    hie    la;;d  and  descrihes   t 'Te  property  in 
ijerieral  terns ,   he    \7ill  he  held   to   hc.ve    intended  to    convey   only 
his    o.vn  partial    interest.        In  all   cases  he   they     dov/er  cases 
or   otlier   sort    tlie    courts    lien  stronyly   in  favor   of    trie    inter- 
pretation t"^.at   v;ill   confine  the  disposition  to   t  lie    interest    of 
the    Conor   sir.v.ly,      The  pres^ni  tion   is  t"a.t  he   intends   to  dis- 
pose   onl;-   of  tliat  p  ..rt    of   tya   property  v/hich  is  his    oxrn.      If  a 
person  hcs   a  p^rtir.l   interest    in  t-B   p    o:;erty  and  he   r.E.3s 
rro,^a>-oi    Tonmn-TP   nr*  r  p sn r iri  tioH ,    t ".16    cairt   uncBr    such  circvjn- 
stances   -..'O'j.ld  ".old   fat  no    case    of  election  v;ould  arise,   hut 


—I.  •—    ,;   I   T  Y     T    -        -    -    ••    :      ■  T:       .'  G  y,    SK.  ..    64. 

if   '.e  v.sez   Ic;-  Tia.'-e    incl^.crtin.-  tHat   it    is  >.is   i:i ':^?:tion  -oo 
per"':    ""ifi  not    on""'  '-'is    inter'^st,    "but    to   convey  r.w'ay    t>e    in- 
terest   of      '-K^"    otiBr  prrty  hy  f\e   use    of   Ir.n 'Ufiie   sufTicisnt 
to   cor.vBj/    tjx  t    inte""eHt,    t'-en  i.-    s    ecirl  cr.s3    of   election   arises, 

■"requ'ai  tly  Cc'ses    of    'jMg   hind  v/lier-3   the  pcrt;/'s    interest 
is   in  re;;ii  inder   or   re"i--:^r    ion  de::  enden  t  upon  a   life    e;.:tc*te.    1'h.e 
prrty   sinply  uses   genert-l   liSiijVie.iie    in    cescriTain"  the  pro- 
r-ert:'  con-.-eyed,    no    c:.se    of   election  '.vill    Ej-ise,    "but    if  '-le 
speci-'icall:^  descri\-)es    the  \rofip.rty    then  r-.    case    cf   election 
v;ill  arise.        If    "Jie  testator  ovjis   a  revere iont  :"y   interest    in 
the   property   or   c-.n   int-rest   "by  •,.ey   of    reminder,    •  r.d  uoes   ^"eji- 
err.l  terns   in    cescribin^    t'le  p  roparty--such  as,    'c.il   oi    t'";e 
f  ol  L0-,-l;iij   descri"bed  ..roperty,    t  o-v-it ,    ' — ::o  :    E:.:'ino  t/.at   ]iis 
iuterent    is    in   reiTif.  inder   or   reversion,    ijin' er   t^i.ose   ci  i'C'.~i;:tar-ce^ 
."lis   int.ere::t  pein^  a  partial   one,    he  v.-ill  te   ;:resuraed  to   have 
intended  to  pass  by    the  v/ill   sinply  his  jjartial   interect;    f.nd 
in  order   to   induce  -ojii'er    the    t^r.is    of    the   instrvjient   t'-.e   life 
ectcte    ^utstu.v.  in~,      an   interition   so  to   do  -.vould  liave   to  t.'  ]  ear 
'jy   strong   and  unecuivoc:  1   lan,jv.aje    go  he  foimd  v;it"-'dn   the 
four   comers    of    -."e    in  st  r 'jr.ie  nt . 

DICTAT  lo:: 

In    case    the  intere;t    of    the   testator   in  th.e  property  de- 
vised  is    only   a  p£vrtial    one,    aid  "\e   mrhes   T.se    of   ..;,eneral  Ian- 
i:v£^_.e   of   d  5Ecri  v:ion,    cuciias,    'all  r;]y  estrte,    or    'all  :...y   in- 
terest',   he   will  be   held   to  have    intendea  to   induce    in  the   gift 
only  'lis   nc.rtial  interest.      Under    such  circunBtr-.nces    an    election 
vould  not   be  re  cessary,    but    if  \e  describes    the  property  speci- 
fically  in  !  hichhe   has  a  rr.rtial  interest  nahin;:  provision 
for    the    other  party   interested   in   the    v/ill,    t>£:i  a  case    of 
election  v.  ill   arise, 

Poneroy  Vol,    I,    474,4&6-89 

76  Va.    &39(I11.    Cases   120; 

18  111,  17(111.  Oases  125 j 
''liere  it  ai^pears  t.'r  t  the  party  intends  to  dispose  of  t::e 
pro:  erty  n^vntioned  in  ty:e  v.lll  only  in  case  he  has  tlie  :■  it  le 
to  it,  and  in  tlae  instrvjnent  lie  nakes  apro\lsion  for  the  per- 
son '-/'id  is  tlie  ovner  of  the  property,  no  case  of  election  v;ill 
arise,  re  'lave  a  case  of  election,  however,  w.'.erever  a  person 
disposes   of  property  in  his   v;ill  that   he   supposes    -".e   or;::s,    altb 

e   nay  he  mistahen,    and    conveys  a  benefit   upon    tlae  person  who 
is    t'^.=    iBal   ov;ner   of   it. 

Pomercy  vol.    I,    475 

5   Pirn.    525 


Z"I.  E   C    V   I    T   Y      J   TJ  F    I    S  ?   P   r        -    ■-   0   '\    ^T^.  :--5, 

'^o-'ietires   v/e  meet    viththis   case:    a    teste. tor  devises 
.roperty   su;:.ject    to   i-;cu:7iTorances ,    but   nxJc'^-s   n:      ro  vision  for 
t\e    disc^x-.rce    of    thei-.CL?.i"brsnices ,    .  ::d  "by    the    scone    instri^-:ent 
mf-ijes   a    devise   to  the   party  holdin;;   the"^  incu;.-bn:.:-ce    or   incumb- 
rances,   under   such  circinstances    is    the  r)?..,rty  hoi;- in      the 
inci-jnbit.nces  put    to  his    election]?      The   courts   hold   thiat  v.here 
nothing   is    said   about    the    discirrge    of  the   i:-iCiinb  i-ances ,    but 
t '-e    devise    is    simply   of   t  }-e    lar.d  without    refeyence    to   the    in- 
c-v.-ibrances,    then  no    case    of   election  arises,    but    if    there    is 
anything   in    tlia    instrurient    to  indicate    that    :^\e    testator   intendd 
t^iat    the    incumbrajice   should  be   disc'r^.r; .ed,    t-he.i   the   nortcc-cee 
T/ill  be  put    to  his   election. 

LI  CT/.T  I  GIT 

,'0  election  v.here  property  t lB.t    is   incunbered   is   ae".-ised 

the  mortgagee   being  nade    legatee    or    devisee   also    •niless    :  re- 
vision  is  made    in  the   v.'ill   for    tiie   disc>.arge   of    f^e    incur.hrance . 

1  Ves.    514 
1  Lavi'  P.ep .   Equity  Cases,    415 

There    is   another    sit^^tion   that  you  will   sometimes  m  et 
\7ith  that    I  v.'ish  to   discuss,    tlsn  I  will   leave   the   discussion 
of   the   doctrine    election   in   e  'uity,    ai.c.   it    is   tMs:      let   us 
su'"',  ose    a  man   ovms  property   in   two  different    states,    for  in- 
stance,   the    stc.te   of  :''ic'ii3in   andthe    st-  te   of   Ohio,      Tj^e  pro- 
perty   consists    of   both  realty   and  T'Crsc-ialty.      'le  makes   a  \Till 
by  '.''lich  he    devises   realty  to  a   stranger  and  bequeaths   t"'e  per- 
sonalty  to  his    son.      The    vdll   is   not    so    eKecuted   that    it    rill 
pass   title    to    ralty   in  t  ]Te   neighboring   stt-te,(    As    somatr.as 
hap   ens   wfiere    the  testator's    state    requires   only  two  v/itnesses 
i-nd  the    other   state    requires   three    to  a  v/ill.      It    is   alr/'a:-'s 
safer  to   have    t'-'ree    vri-tnesses   to  f    T/ill  altho  your   ov;n  strte 
only   requires    two.)        Under   such   circrmstances   do    v.-e   h    .e  a 
case    of   election?     V,''ill   the  ?.3ir-at-l:.'.?  be    compelled   to   elect 
v/b.ether  he   vlll  take   t 'tb   bequest   tinder   the  rill   or   ta::e   as 
heir.      The    conclusions   of  the    courts   .:  re   not    c-.lt  ogether   satis- 
factory,   but    I    think  tir-t    tliis    rule  rx-y  be   -.vorked   out    of  the 
decisions:   Y.lTere    the  language    of    tlie   testator   is    general   in 
c-naracter,    w>:ere   he   does   not    refer   sp  eciL'ically   and   c.irectly   to 
the    lands    situr.te    in   th£   other   state,    under   those   c  hfcizzstances 
he   v.'ill   not    be   put    to  his    election,      "^ut    if   }ie    refers    to  the 
la-nds   specificallv  he    vdll  be   put    to  his    election. 

nCTATIOlT 

^:iere    lands    and  personalty   of  a   testator   are    situc;te    in 
different    states,    and   land   in  a  neighboring   state    is   in  tenns 
devised   to   a    stranger,    the   domestic   pro-vc-rty  being  left    to  his 
h.eir-at-law,    the  vdll  not   being   executed   in   suda    a  wty  ae    to 
pass    realty  in    the   neighboring    strte,    then  v."e   jiave   a    case    of 


XVI.  iiOuiTY    jt;ri'PrudE;-:c]:].     si-,      ee, 

election  provided  the   description   of   the   nei;:hoor inc  rej-l 
".roperty  is    s-pecific. 

Van  ?4ke '  s  Appeal,  60  "Pa,  c;t.  461 

V'e   cane   now  to   a    convsider.:  tion   of   the 

rocrHiir-'  o?  satisfactioii 

v.'hich.  is   a  doctrine  closely    allied   to  tl3,t   of  election,      The 
underlying  principal   of   each  beint;;  tlie    saiue  niaxin  of   equity 
"thft   he    vvl.o    seeks   equity  must   do  equity."        In  rricvny  cases   of 
pat  isf  act  ion   an   election      ust    actually  tahe   place.        i^'c.tisf;  ct- 
ion  as    the    term  is   used   in    equity  is  a  su"bstitut ion  for    the 

thin^;   cox^nanted  to  be    done.  somethin,:3   is   ci'*'©^   with  -.n  in- 

tent,   either  express    or   iiaplied   on  tlie   T;c-.rt    of   the    cionor,    the-.t 
it    shall  he   received   in   exstinction   of   sone  prior   ohlijation 
in    favor   of    ".'m    donee.      Su''';-^i0se   ii,  is    indebted    to  E,    and  A  nahes 
a   will  and   in    that  will  r.ahes   a  bequest    to  E  tJiat    is    ec\;ir,.l   to 
or    {.greater    t^x^n   the    indet bedness.      '!e    does   not    say    thjat  3   is 
to    receive    thebequest    in   lieu   of  the   indebtedness.      Can   ycu 
under    such   circuj^istances   v;ork  an    intention   our   of    the   i::stru- 
^rient    on    the  ptrt    of    t'le    testator   to    the    effect   that   the   bequest 
is   to    be    regarded   as   a   sv.bst  itu  t  ion  for   t;:p    debt?      Tae     -ensr-^l 
rule    is    that    whenever  a  person   is    ibcebte'::)   to  another,    arid   in 
his   ^7ill  he    leave   a  bequest    to    that   p  art:         equal   to    or   .^ret  ter 
thr,  n  the    incebtedness,    a    substitution  will   take  place   in    ec_vity, 
er.d    the    devisee   will  be  required  to   elect    whether  he    ;7i:.l  take 
the  provision   in  th^-   will   or  v;ill  enforce   b.is    debt.        That    is 
t]ie   renerc:l    nile   w-TLch  is   subject   to    several   exceptions  -..-hich 
I   v.dil    discuss    in  due   t  tie . 

I)IGT/TIO:i 

':!atisfaction   is  a    substitution   for  a   tjiing   covens  n":ed  to 
be   done.      It    is    an  equity   doctrine,    and    only   courts    of   equity 
can  enforce    satisfaction,    and  this    doctrine    is    frequently  and 
perhaps   usualxy     enforced  by   the  party  beir.j  canpelled    '-o  elect 
betv/een    the    enforcement    of  his    cblicttion  and  the    receiving   of 
the   benefit    conferred. 

Division   of   satisfaction. 
(Ij    Satisfaction   of  debts   by   legacies.      Th.e  general   rule    is 
t'\at    if  a  person  bein,_;  indebted   to    another   leaves   to  hin 

in   his  will  a   suan  of  raoney   equal   to    or   greater  than  the    indebt- 
edness,   altho   he   does   thns   v/ithout   ?r.3ntionin,_    t  ]e    inrebtedness 
in    the   vail,    this   provision  will  be    regarced  :  s  a   satisfaction 
of    the   debt. 
{2}    satisfaction   of   legacies  by    subsequent    legacies, 

(3)  satisfaction  of  portions  by    le.jacies. 

(4)  satisfaction  of  leg-cies   ^cy  portions 

oOo 

lec.    1st,    1903. 


77nz  T:   Q   U  I   T  Y     J  I;   HI    S  P  p.   U  D  E  i;  C  E,      SH»         67 

L  rC   C   ?    i;   R  111  T:'II^ 


I   hr^ 

I    said   to   you  yest^rdar/  norning  that  satisfaction  is   -uhe 
^■■■•.b  £^:  it  tit  ion      for  the   thing   coven£.ntedo      /nc    I  h£ic.   ^iven   to 
,  ou   the    gBiieral   iiile  w'-ich  is  as    follows:      that    if  a  person  is 
ir.debted  to   ejiother  emd  leaves   that   other  in  his  -i/ill  a  euq 
of  money  equal    to  or  greater  tht.n  the   indchiedness,    even  the 
he    does   this  v/ithout  nentionin^  the   indette,- noss,    a  pres-..  rtion 
of  on   intended   satisfact  ion  of    the   debt  will  arise© 

vhilB     ihis  preKiTiiptJ  on  undoubtedly   exists   and   is   raco..;-.i- 
.:§d  by    txie   caarts,    it    is  not   a  pre  sumption  t^-iat  is    fa",  orod  in 
equityo      The  courts  lean    stronily    against   it,    and  hu's    .rco-.ted 
mi;ierou3    receptions   to   the   i-alco  ,' ^  "^ 

Rtronc  Vo   ":'illia:.-!s ,    12  Ilasco   391(111,   Cities  -591)- 

J'ZCHPTIO:'S   TO   TJ.^E   GT.Y'-^.VJ.'L   '-.'.JJ^.l 

(1)  ^^'xs:;}*:      zj^OAOY  is  u^ss  t-:a:i  335  uj^t 

Parker  \%    Coburn,    10  Allen  £2 
(2)      Rule    does     lOt   a  .ply    -here   i::3T  V7.S  COr?K.,aCED 

subsi:queit7ly  ?o  ?'."e  y/PT  ;■■-  o_"  ?::";  1,111.0 

■^lorner'  .  P.'xrsc   Vo  T'cGovran,    C:^  Pa.    St,    169 
(5)      70   satirfrction   v.hore   TJCGACY  Aia;  BEST  Ah^l  "~.'.Y- 

riornar's  7xrso   Vo  ■"■cGo\,-an,    ev.oi^ 
(4)     "zz:pz  legacy  is  cci':ir.n!2:T  or  UNGERTAIV,   -he 
presijnption  of  an  intended  satisfaction  does  not   arise, 

^  i)  y  >,-i^iIwli      ^  -Uj     XJj—j.      J.  O     0_.  U-j_ -X^.J-j..  J      i.,5      Xn     Co:.Se      G_      km 

runnin^;   accamt„    no  presumption  of  an  intended  satisfaction* 
The    rules  ■.."■j.cii   I  iit-^ve    discussed   u'e   found  in 

Poneroy  valo    !>    para*    f34o 
The  bequest  nay  be  n.n  the   fcmiof  moneys   or  it  nz.y  be  in 
the    fcrra  of   joods  or    cliattelSo      A.iythinc  tlict  is  per30?aal   in 
its  neture  c  ones  under   t.e  3iead   of  bequests.      You    ccwun-'t 
satisfy    a  debt  by  handing  orer  to    t!Te  creditor  sone  other 
kind  of  property,,     You  can  onl;;,'   r;ive  hta  T.'2iat   is   actual  Iccxil 
tendero        You  cannot  putliim    to  an   3lectiono      ?h::   general   I'ule 
does   :^ot  apply  v/here    tiie   'oequest    is    soaethin_  besides  noneyo 
The  value   of  th-e    chattel  may  be  much  greater  than  the   value   of 
the    debto        "ow  a   debt    is  usually  in    t]ie   form  of  a  pacu^ii;. ry 
liabilityo     '^he  party   is   obligated,   by  the  relation   of  debtor 
and   creditor,    to  pay  to   th-e   creditor  a  certain    scc-^  of  money.   Of 
course   a  debt,    generally    si'/eakinC;   may   exist  vhere    one  :  ■.  rty 
has    to  pay  another  in  a  certain  ^ccnimodityo     ITo\;  if   the    cebt 
is   in    fis  U;\-al   fcrm-an  oblipati6}i  to  -pc.y  a   certain   s\to  of 
money-,    a  let^acy  in  the   v.'ili   speclL^ic   in   its  luture,    by     'Aoh. 
a  particular    thinCj-a  particular  piece   of  property-is   co:T-eyed 
to  the  creditor,   v.-ill  not    satisfy  the   cebto     T!o~<,j   an  indebted- 
ness   e::ists   in  t  >£    form  of  a  bond  for   ''500  made  by   c  nother  to 


77^1.  EQUITY      J  U  Tv   I    S  P  R  U  7:  T^  V.    C  E«      CT:,        58 

J)1C''2L7J.01J 

6th  EACEPTIOiT:      Rule  does  not   arply   -.here   the  :Ti-0'.l:ion 
ii-    the  v/ill  is   a  "bequest    of   so..ethin-^  difrerent    lYoi'a  the 
obliijCLticne 

This    exception  you  7,111  find  discussed  in 
the  Case  Book  pa^e   135o 
49  To^^o  ."^qo   106;    27  Ate   :':epo    759o 


It  frequently  hi.ppens   that    a  testator    states    soae  ;  oiiive 
that  has   inr^uccd  him  to  nialce    t]ie  provision  inthe    v.'illo      The 
presumption   of    the  :j;eneral    rule   does   not    a;*   ly  here   -ujilecs 
the  motive  "be   a  statement  of  an   intended    satisfaction, 

nCTA'ZIOl^ 

7th  SXCSTTIO^T;     YCiertrver   a  motive   is    sipressed  ot}i;.r  than 
en   intention   to    So.tisfy  the  debt,    general   rule    does   not   aj.^ply, 

^'omerovj    volo    I|    lu-rao    555o 

Very  frequently'   a  'ill   contains   ;.  n  ei-press    direction 
tliat   all  debts   and  lej^i.cies   be  paJd.©      Sometimes   the   fon.)  of 
direction  is    tlij,t  all    debts   be  paido     '7o\!  tr-e    courts  have  held 
v;ith   considerable  unaninity  thct    vhere    there    is  an  expression 
in   the   will    di2-ectinc  tiaat   all    cebts   end  le^jacies  be  paid,    a 
prosujrptlon  of  en    intended  satisfaction     of  a   debt  by   a  lejacy 
will  not    ai'isGc     And   sane    coT;irts  have    ::ctie   so  far  as    to  liold 
th^t   v,-l>ere    the  provision   in  the    •:;111  is    simply   that   all    cebts 
be  paid  the  presum-^tion   of   intended    satisfaction    sliall  r^o^ 
arise o      You  ca      see  -.vhat    t'le  reasonir;,j   of   tl^-e      court  mu£rt   be. 
If    the  t  Gstatcr  has   directed  that    all  debts   and   legacies  be 
paid  he   cannot    reasoricbly  be  held    to  have   intended    that    one 
debt    should  not   be  paid  because    a  le^uc;,-'-    is  pro".i.ded   for  the 
orediitor.        llov/  tlie  \fv-y  the   Ga;r:s     iiave   tried   to  esccpc   from 
the  effects   of    tire    general   rule  will  be  apparent   from  :;:;' 
reference  to   tlie  next    cnc    eighth  exceptionj 

lilCTATIOi; 

8th  EXCI'PTIOIT:     The    .^eneral   rule    -..ill  not   a. .ply   v.here 
there   is   an  express  prxj vision  in    tne  v.ill  that  all    debts  and 
legacies    shall  be  paido 

12  j.asso   391(111^    n^^---   125) 

49   rqo(-^ouo)    106      Tlllo    ,,ases   lo5) 


/n  agreement   is    entered  into   betv.'een    t.vo  parties  by 
v.hich  one   a^irees    to  serve    tlie   other    for  th3    caisidei'atiaa   tlxit 


:rvii         r.  v,  u  i  t  y    j  t;  r  i  s  p  :i  u  d  e  :'  ci^,  sh«         69 


the   one  toijis    served    sli^ill  leave    a  bequee-t   in  Ills   v;illo   ''nder 
such  cii-cuastances   if  services  are    rendered  t!-£   obligation 
eriistBs    and  if   it   is  Djcde   in  the  v/ill   it    is  £;oodo        It    cu'ises 
out   of  tlis    express  agreement   of  the  --parties,    ovt   sup;  ose   the 
aareenent    is  a  general  one    that  A  \.'ill  work  for  B  durinj  the 
remainder  of  B^s  life.;    provided  E  v;ill  laalro  hia  his   heir,    there 
are  under   tliese    ciir  urn  stances  certain    equitable   interacts   in 
this  property*      If  a  person  agrees    to   perfona  sei^-.'ices  i.nd  to 
be   compc-nGated  by  a  provision  in  a  will  in  liis   favor  and 
such  provision   is  rDs.de;    it   \7ill   if  reasonable  be    rejarccd  as 
a   satisfactiono     A  creditor   in   sucli  a  ease   vrill  not    even 
have   an  el  edition,    forhe  has   agreed  to   loo>  to  the  testaiaentar^'' 
provision   alone  fcrhis   coinpen::at  iono 

DIGI'ATIOIT  ■ 
Tlie   doctrine   of  satisfaction  ao]jlies  frequently  rz-ere 
a  party  h.nd   rrreed  to  c  otto-,- n sate   another  ;'or   services  performed 
by  a  provision   in  the   v/illa      If    the  part;-'   receiving  these 
fiev:'icgi;^;r??,;:ris^t;:^e  p^-OA^.sion   agreed  voon,    it   will  be   deaned  to 
be  ;  a.r    "w}ie  agreenenu    zT'   t/jat    the  :o  ro'.ision   shall  be  a 

reasonable    one    then  of    course    the    court   v.ill    decree   it   to  be 
ft.   satidf uctiono 

64  richo    1 
13   Jolinso   379 
Poneroy  vol,    I,    £38 
If   the      provision   in  the  vill   is   not  ziade,    then  the 
party   rendering  the   sarvice   is    entit  n:;d  to    reasonrble   cczi- 
bv^nsation  as    against   tr^  estate   of    the  deceased, 
\      -Tow  in  the  ;.;aGes  thus    fai*  Lientioned,    I  have  hi:C.   in  uind 
thlsstyte    of     facts!      tiiat  the  parties  are  vinuer  no   ob?i-atior.s 
to   e^ch  othet    that   t'ro^  out   of   family  ties   i\nd  responni",; ill- 
ties/    3ut   v;here    aich  relations  exist    the   rules   are   the    sane 
as   in   other   caseSo     '^oC^i    if  ^  father   owes  a  debt   to    :.   cMld 
and  leaves  a   legacy  to   the   child,    the    case  v.-ill  be   ^:o->-.jr.ied 
by   the   rales   I   have  riven  youo     There    is  a  difference  :-.ov,ever 
when  v/e   cane    to  the    subject   of  satisfaction  of  a  l-.gacy  by  a 
portion  or  the    satisfaction  of  a  po:-tion  by  a  legacy, 

Sonietines    it  hapvens   that  a   crev„itor  cri"es   a  legacy  to 
his  debtor  unaccoap.,nied  by  t-.W   lan^-ucge   5ho-..in3  en   intent 
on  >^is  part   to   release   or   di  s'jharge  the  debto      The   riile    is 
that   t]iis   docs  not   ordlnpjr-i.ly  operate   as  a  satisfaction  or   dis- 
charge  of   t>e  debt-,      there   is  no   intention   thax  he    intends 
the   legacy   so   to   operate c      0-    course    the  prestTiption  mi,  ht   be 
such  that^a  presunrptiorA  '.;ould  arise,    and   it  ni^rht   appear  on 
ube    face   of  the   instrument   that   the  p<.;rty   so   intends,    ana  in 
such  -•?  c  ase    it    v;ould  operate    as  a  discharge   of    the    debto  'but 


::vTi..  E  ",  -J  I  T  Y    JURIST  p.  u  ..  F.  i-'  ct:.  si;,       70. 

ordinarily  tlie    effect   of    sncla    a  leg,-,  cy  '.xuld  te   to   0,  ercte   r,s 
aji   ec^ui table    set-off   in  co:,e    stateSo        Zut   in  t>.e    cannon  lav/ 
sta'.fcs  yoii  could  not  put    it    In  as  a   defense   to  a  le^jal   t.ctloni 
you  v;oiild  have    to   go  on  to  tlie    equity  -ido   of   tho    court  j    cjid 
Bst  up    the  facts  and    c^t   it   allowed  as  an  equitable    set-o^f  to 
tlie  le:i;al    claim# 

:  IC'JATION 

The    doctrine  of  SATIS5'.'CTI0:'  IS  SSSi:::ri/.LLY  AIT  E^.UI'A'^LS 
doctrine©      In  a  case  '..here    there   is  a  pre3u:i;.'tion  of  i      i:i- 
tention  to    create   a  sa:i3faGtion  exists— -as  "..here    it  api- ocrs 
that   the    debtor  intended  a   ler^acy-^the creditor  may  be   conpe.lled 
to   elect,    i:por  a  bill  filed  by   tie     executor  asking  for  euch 
an  election^ 

"he  legacy  cannot  be   interposed  as  a  defease    to  L.n  cXuion 
at   I&t;  upon  the   debt   until   the    election  has  been  inade,    <^cnG- 
times  a  provision  for  a  le^-cy  :,iay  be   interposed  as   an  equit- 
able   defense  where   law  end  equity  are    ac;-.J.nibtered  by  the    same 
tribunal  and   in   the   saae    cxjtion© 

Stagg  To   Beelanen,    2  r'dv.'u   'Clhanc,    91 

^oia^royj    I,   parao    543 

:iobiU-t  T^   ctcaie,   10  Piclto  215 


■OOO"---'" 

Lcco    Irit,    1903, 


X7/III.  ^    Q  U  I   T   Y      J  U  R   I   S   P   P.   U  D  E  II  C   11]      S   E.  71, 

L  ''-]   C    ^   '.:  R  y.  TUIl. 
oOo 


This  pomin;'    I    ■.•ill   t.a]:e   up    the    sutje-ct    of: 

--      II,      SA-IFT/GTIOIT  07   L:^G   CTEH  TY   5TI3^v^UT^"T   JZZO/.CIT.S. 
I  i7ish   to   Ei;i;:;:;est    (1)      ^-"aere   a   let'^acy   cf   quantity   is    ji^'en   t-ice 
in    the    sa;ne    instrument   to   the    sairio  person,    the   second  .:i-t 
v'ill   as   a    rule   be   held  to  be    substctution,-  ry  and    in   satis- 
fy ction   of    the   first.      Thus  v/here   a    testator     (jave    to  liar:'-   Coole. 
vrife    of   John  Cook    '500,"  and    cif  ter-.vards   in   the    sarr.e    will    '  500 
to  his    cousin  !'ary  Qcok,    th."    court    hel-    t'  at    she  v;as    entitled 

to    only   one    legacy   of   .■"'.500. 

EICT/.TIOIT     ■ 

II,      ^'nere  a    le^^^acy  of   quantity  is   ,i;i  ven  tv;ice    in   the 
sane    instrunent    t©   the    sa:;ie  person,    the    second   ^itt   ^/ill   he 
held   to    ce    suhstitutionery  S-nd   in    satisfaction  of   the   first. 
Snail   iter.s    cf   cliSference   will  not   pre-.-ent    the  ap    licaj^ion 
of   this   principle, 

'"'e   have    a    case    in   the   Case   ?ook  upon   this  phaze   of  the 
subject, 

la  rohn^   15o(    111.    Cases    137) 


Here    is   a   qualif  ica':  ion   of    the   nale :      "^ut   v.-here   the 
testator   in   different    instruments   gives   legacies    of   quantity 
si'Tiply    to    the    sane   person  and  uses   no   lancu£.jje    shor/in^;   a   diff- 
erent'intent ,    the    seconc    le;;;acy  v/ill  be  held  to  be    cumulative 
and   rot    in    satisfaction   of   the  prior   legacy.        Under   such  c  ir- 
comstances    the  presu^n^tion  arises   thj3t    the  testator   intended 
the   :' 3£;atee    to    receive   both  cii'ts,    and   it   niakes   no   difference 
'Aviether    thesecond  gift    is   exactly    equal   to    or   greater   or   less 
the  n  t'le   first 

DIGTATIOIT 

''here    the  testa+or   in  tv/o   testamentary   instruments   gives 
legacies    of   quajitity  to   the      same    legatee    sinply  \rithout   using 
c..ny  words    explaining     his  r.ctive,    under  such  circuinstances   the 
court   \vill  hold  that    he    intenc.cd  a   double    gift,    and   there  v;ill 
be   no     iresum-'-.tion   of  satisfaction, 

3ut  '-.here  in  these  tv;o  instruments  he  gives  legacies  the 
same  amount  in  each  and  expresses  in  connection  v.dth  the  gift 
the  m.otive  and  tr.e  m.otives  ar<e  the  same,  under  those-  circum- 
stances the  court  v.'ill  hold  tliat  the  double  coincidence  of  same 
amount  and  same  motive  indicate  an  intention  on  his  part  t'lat 
the  second  legacy  ^s  srhstitutionary  and  not  in  satisfaction 
of    the   first. 


77III.  E   0,  U  I    T   Y      J  U  R   I    S  P  R  U  J    '.'  I"   C   E.    ?,:..    72. 

'■mt    if    the   testator   p-lves    let:acies    of    qua.ntity 
siniply  to   the    sane   ler^atee    in   different    instruments,    trie 
second   legacy   will  ":e   held   to    oe    cvjuulative   anci  not    in   satis 
faction   of   the    first,      ^ut    if   a   motive    is    expressed  and   in 
"both   instruments  we   find   t>ie    sa^^e      otive,    the    court    ""111   raise 
'le   ''resvinption   of   an   intended   satisf emotion.      This      resu^iption 
v/ill  not   he    raised   if   in   either   instrujnent    there    is    no  iiiot- 
ive   ex  ressed  although  •';-ie   amounts  he   the    same,    nor  v;ill    it 
he    raised   if  the    same  motive    is    expressed   in  hoth  instr'aments 
a;i'.     the    sums   he   different, 

5  ! haddock  Chanc,    351 

5  3  h.H.    191 

The  term  '  different  instrtaiients '  refers  to  c.iffepent 
wills,  or  to  a  vill  or  to  a  cocicil  thiereto,  A  coc'.icil  is 
regarded  cy  t'.e  courts  as  a  different  instrument  so  far  as 
t";is  pr'ncirle    is    corc  erned. 

EIGTATIOIT 

There    is   never  a   satisfaction  -.here    the  cX-iounts    of   the 
legc.cies   are    different,    nor   where   different  motives    are   exr 

T)  ITG  3  ^  G  d. 

17    0    nt.    597(    111.    n/czes    139) 


It    is   a  matter   of    some    importance   to   hnov/  to  v/]iat    e::- 
tent   parol   evidence    is   t  cLmiss  ihle    to    s^-ov/t'ie    intent    of   the 
testator.        Parol   evidence    is  not,    as   a  general    rule,    acanissi- 
hle    to    import    to   a  v/ill   an   intention  different   from  t'l^.t   • /hich 
a  pears   upon   the    face    of    it.      5ut    it   may  he   used   to    shov/   ^.he 
situation   of   the  parties,    t'-.e   sit\;iation   of   the   •  property , and 
the    cone  ition   of  the  property,    to   such  an  extent   as   ^,;ill    -ut 
t'le    court    in   the   r^iace   that    the    testa'^or   occupied  -.hen  the 
■•ill   v.^s  made.      Put    it   may   ^-o    s  omevrhc  t    farther   in   -.he    case 
t"-at    vie    are   considering.        In  general,    parol  evidence    is   ad- 
missihle    in   these    cases  v/here    the   effect    of    t:'-ie    evidence   will 
he   to   conidrm  the   will   in   t/ie   terms   in  which  it    is   v/ritten 
v.'herever  a  presumption  arises    asjainst    the    strict    •  ording   of 
the   Y/ill,      You  may   i}itroduce   parol    evidence   to    shov,'  that    it 
was   the   intention   of    the   test.- tor   t'at   hoth  legacies    should 
pass   to    the    legc^tee.        But   \7here   the    effect    of  p.-  rol    evidence 
will  he    to    centre. diet   and   chan  e    the   terms   of   the    instrument 
it   will   not    he    admissihle, 

DICTA  ^It^lT 

■^•arol   evidence      diviiss  ihle :    (Ij    To   show  the    ^enoral   situ- 
ation  of   t":e  property  a:x.   the    relation   of   the  pt-rtiesi    (.:; 
where    the  e  f feet    of  parol   evidence  will  l:e    to   confinn  the 
terms    of   t  -.e  will,    as   -.here    ^:Jiere   is   a  ;.  resumption  against 
douhle    legacies,   parol    evidence   may  he    introduced    to   show 


T'liT.  E  r  u  I  T  Y     J  u  R  I   :•  T^  1.  u  :,  E  i:  C  E.    SK.    75. 

f  at    the    -best'-    or    intended   fie.t   both  lee;c,cies   should   take 
effect;       (3j      It   cannot   be   used  r.'here    its   effect   v;ill  be   to 
Gontracict    the  t  ijrins    of   tiie   will« 

Pcr.eroy,    Vol.    I^    552c 

5  I'adc.ock  Chanc,    351 

4  HareC^'ng,    Ch.  }    213 


I  v,'ill   next    consider: 
SATIS?ACTIOI\T   0?  ^OHTIOrlS   3Y  LEOACI-^.S   and   ade;..ption   of 
legicies   by  portions.      A  portion   is   a  pro''.df:ion  inade   for  a 
party    either  by  way   of    a;;reeiQeiit   or  will.  It  .nay  be    iji  the 

for^.:   oC   a  rr'iarric;';^e    settler:e;it ,    or   it   nay  l;e    in   the    form  o.:'  an 
agreement    to   transfer    somet    iiii^,    to  another  party   in   'Lhe  future. 
It   riay  be   in   the   fori.:  of   atrust    for    the  benefit    of    thtit   other 
party.      It    is   a  pecuniary  :"•  revision   of   sane   sort.        /-n   ade.^rr^tic 
is  vr"-_ere   the    testator  does    something  that    the   court   -..'ill   sub- 
stitute   for  a   letiacy  th.at   is   provided  for   in  the   v;ill.      It 
is    in   SL^tisf  action   of   the   Icgrcy  b:,-  s  one  thin  j  tliat    t";e    tes- 
tator dees    outside      and   indepenc'ent    of    the  v/ill.      It    is    the 
exstinction   or    v/itholding   of  a    legacy  in   consequence    of   soi;:e 
act    of   the  testator,    \;'ich,    thou,  h  not    difecoly  a   rentuicic  t  ion 
cf   the   bequest,    is   considered   in   l-.v.-  as    equivalent    thereto,    or 
in-  icctive    of    c.n  intention  to  revoke.      In    regard   to  portions 
t]-Le     .eneral   doctrine    is:    that  there    is   a   _";resu;:iption  against 
double   portions  v/henever    the   relation  betv/een  the  parties    is 
t'lat   cf  parent   and    child,    orwlierever   the   donor    stands    in  loco 
parentis   to    the    donee,      rut   no    such  presun  tion    exists   '.vhere 
i"-he  narties   are    strangers.      ?or   ex&jiiple ,    where   p  parent    or 
otJier  pers  on' standing   in   loco  parentis  bequeaths   a   legacy  to 
a    chjild   and  afterwards,    in  his   lifetime,    gives  a  portion  or 
iiie.hes   a  provision  for   the    same   child   or    grancchild  without 
exuressin^'   it    to   be    in   lieu   of    tVie  legacy,    it    will   in  general 
be    deemed  to   l:e   a   satisfaction  or  adeinption   of    tb-e  legacy.    T:\1h 
upon  the    ground   that    t"^\e   legacy   is   considered  to  be   a  portion, 
and   if  the   tests,:or    srterward  advances    the  saice    sum-   -".pon  the 
child's   r:arriage    or  any  oth.Tr  occapr,ion-  he   does    it    in   lieu 
cf    the   ori/'inal  portion.        The   relation  betv.'een  the  testator 
a:;d   legatee    creates   a  presumr-tion   offact    that    ihe   advancement 
intended    in   t"te  nature   of  ve-'^Tr.ent    and  wr,5    so  intended. 


..a.  k 


-.ICTATION 

SATISI-ACTIOIT  Or  PORTIOHS   lY  I?!GAGIES  A:J)   07  ISG'''''IES   BY 
POhTIOlTSo        There    is   a  p  resu:r.ption  against    double  portions 
whenever   th.e  relation  'cep7reen  tlie   parties    is    that   of  parent 
=:  nd    cltLld,    or   -./lisnever  t:\e    donor   stands    in    tJie  relation   of 
parent   to    the   donee.        But   no    such  p  resuription   exists   \,'here   th-; 
■parties   are  strangers, 

16   :^.Y.    9. 

;ii    'Illo    Cases    145) 


XVIII.  E   r^   U  I   T  Y      J   U  r.   I    S  P   R  U  I)  E  IT  C   E.    oK.      74. 

You  will   see   irom  a  reading.,  of   tMs    case   t  :iat    the 
Georgia  Ju.d:;e    rather   fretted  mic  er  the    road  marlced   out   to  hira 
hy  the  precend  precedents   that    estchlish  this    rule    t/iat   v:here 
a   father  makes  a  pro -'.'Is  ion  in  his  v;ill  for  his    child  and   sub- 
sequently makes   an  adva;ice:.ient   for  the    cMld  that    such  ad- 
vaicement  must   Toe  rresumed  to  he   an    intended  satisfaction   of 
f-^.e  pro-'ision   in  fne   '/ill.        It    is   a   rule   that    some    courts 
have  held  to  be  liarsh  ajic.  vmnatural,    an:'   v/Mch  this   Georgia 
court    evidently  so  considers. 

118    Ind,    147 

20  r.j],    733    (111.    Cases    143) 

5   sneed  229    (    111.    Cases   14&J 


In   cases    of   the   -cind   discussed  under   t:ie   last    .general 
head  an   illegal    or   ille.'~it  imate    child   is    regarded  as   a   stranger. 
so   that    the    illegitmate    child   is   in  a  better  position  t]'ian  the 
lecit imate    child.      Tills   rule   I'las  been   criticized  as   harsh  and 
u:ireasonable,    but    it    is   -^-enera-lly  upheld  at   the  present   time 
by  English  and  American  courts.      But    :he   natural   child  May  be 
put    in  the    same  position  t]iat  the   legitij7iate   child   occupies 
if   the   putative   fat:ier  assumes   t  ov/c  rd  him  the  position  hnovm 
as    '    in   Icco  parentis.' 

DIC'^ATIOIT 

The    same   presv::iption  exists   v/here    the  relation   is    that 
knovm   to   the    law  as    '    in   loco  parentis.' 


■"Iiether    that    relation   exists    is   z.   question   of    fact   -..'Mch 
may  be    shcvn  by  parol    e-''idence.      In   order   that     this    relation 
m^y  aris'e    it    is   not   necessar;y'   tiiat   the  parties   live    to^;ether 
unc.er  the    saa'ie    roof;    it    is  not    necessary    tlat   tjiere  be   a.iy 
official   recognition,    nor   is  a    legal   adoption  necessary,    but 
if   the  facts   show  that  the   donor   intended   to  provide   for 

t'-ie    dependent   and  to   look  after  him  as   a  parent    v/culo.   look 
after  a   child,    the   court  may    assume    t^iat   this    relation  Icnovm 
as      '    in   loco   parentis'    has  been    raised. 

The    leaning   of   the   court    in   case    of   the    satisfaction   of 
a  portion  by  a   legacy  or  a   legacy  by  a  portion   is    in  fa-or 
of    the  presumption  v;here    the  relation   of  parent   and   c>dld 
exists.'       In  the   latter   case   the  presumption   of   satisfaction 
will   not   be    repelled  by   slight    circiunstances    of   difference 
between   advancement   and  portion. 

In  case    of    satisfaction   of   debt   by  a   legacy  the  pres-.-mpt- 
ion  that    arises    is    one   t'lat    the    cour-ts    l$*ji   against.      They 
consicer  that    it    is   an  unnatural  and  an  ui-iusual  presumption. 

LICTATIOi: 

Courts   l^?@?i   in   fa",  or   of   the  presumption   of   an   intenc'ed 
satisfaction  where   this    religion   of  parent    and   child  exists. 


r/III.  T^   Q   U  I   T   Y      J  U  R   I    S  V   R  TJ  T-  7.  17   C  ::.    SK.      75. 

■.-,  r:ouse    of   Lords   Cases    151, 
In   tMs  c  ase    the  Lord   ChSviicellor    in   df^liverinc   the 
opinon  of  the    court    said: 

"   Before    I    consic.er    the  authorities   as   applicuhle    to 
the   facts    of    this  case,    I   think   it    expedient    to   thro'kV  out   all 
the    cases   which  have   been  cited   in  V;h.ich  questions    have   arisen 
as   to   t"-.e    legacies  heinc'    or  not    Toeing  held  to   he   a   sat isf emotion 
of   a   debt;      for  hovever    si:.-nlar  the    tv;o    cases  nay   at    first 
si.;ht    appear   to  be,    t'-o    r.iles    of   equity  as   applic£^ble    to   each 
are   absolutely   op;iosed  the   one    to    the    other.      ]^quity      leans 
against    legacies  bein,     talcen   in   sat isf auction   of   c'ebt,    but 
leans   in   favor   of  a  provision  by  v/ill  bein^     in   satisfaction 
of   a  portion  by   contract ,    feelin.j   the   great    inproba.bility   of   a 
parent    intending  a  double  portion  for   one   child  to  the  prej- 
udic:   generally,    as    in   this   case,    of   the    other   c'-dldren.    In 
the    case    of   a   debt,    therefore,    circumstc-nces    of    a-ia-ll   differ- 
ence  betv;een    the    debt   anc.    the   legacy  are   held  to   negative   any 
presimption   of    satisfaction;    v/hereas    in   the    case    of   a  portion, 
SLiall   circimstances    are   disregarded,      ^o    in   case    of  a   debt,    a 
snialler   legacy   is   not   held  to  be    in   sat isf auction   of  part    of 
a    larger    debt;    but    in    the    case    of        portions    it   may  be    satis- 
faction pro   tanto.      It   has  been    decided  t/.at    in  the   case   of 
a    debt    a  gift    of   the  v/hole    or  part    of    the    residue    cannot   be 
considered  as    satisfaction,    b'ccause    it    is    said  that    t]ie   ajnount 
bein^-  uncertain   it  Lia^y     prove   to   be    less   than   tlie    debt. 

In    considering  -jrjsther   "liis    rule   applies   to  portions, 
which  is    the    real  question   in    tbe   case,    the    rear  on   of    che 
rule   as    applicable    to    cebts  must   not   be    lost    sight    of;    be- 
cause  as   a  portion  may  be    satisfied  pro   tanto  by  a   sma.ller 
legacy,    the  reason  given   for    the    rule   as   applicable   to   debts 
cannot   apply    as    to  portions.      And,    on  the    contrary,    if    the 
residue  must   be   supposed  to  have  been   considered  by    tjie   tes- 
tator as    of   sane  value,    it    would  a/ppear  upon  principle   t]:iat 
it    ought   to   be    considered  as    satisfied   altogether   or  pro   tanto 
according    to    the   ar.'iount.      Por    -.dTy    should  IjIOOO   named   as   residue 
not   liave    the    same   effect   upon  a   la I'ger  portion  as   islOOO  may 
as   a  money   legacy?" 

2ICTATI01T 

It  is  not  necessar;-'  in  order  t":at  t}!.e  doctrine  of  sat- 
isfaction apply  that  the  ar.ount  given  by  v/ill  and  subsequent 
legale y  be    the    sai'ne. 

Pomercy  Vol,    I,    557 

oOo 

Dec.    9th,     1903. 


XIX.  E   q  U  I   -J  Y     J-  U  R  I   S  ?  R   U   .T:  .J  S    OR.    SK.         76 

I.  T-  C  T  U  R  F-  yjx. 
oOo 


By   reason   of   tlie    lact    that    ec^aity  favors    the  pr^suiription 
of   an   intended   satisfaction  of  a  legacy  "by  an  advance^ient  v/here 
fie  parental   relation  exists,    it    follo7/s:    {!)    Tlirt    it   is   not 
nececsL.i-y   that    the   a.noi;int    ^iven   oy  the  will   and  the    svhsequnet 
advancement  "be   the    same.      The    satisfaction  v/ill  be   complete 
if  the   amoTint    is   the    Sc-nie    or   greater;    it   v:ill  be   pro   tanto   if 
t'le   anount    is    less. 

^' or  16 r oy  vol,    I ,    p ar a ,    557 

5  :'ilne   ■-■c   Cra,^. ,    359 
(2j      The  prestunr-tioh  of   satisfaction   is  not    ovsrcor.e  by 
the  fact    tiat    conditions   and   limit  cut  ions   attached  to   the   sub- 
sequent provision  are    sone\vlrt    different    fron  those    attached  to 
t^-e    lej-acy, 

3   Clari:  &  ?ind.    146 

54  Bevan   19 

(3)  If    the   lejacy  is   uncert';;in   in  amount,    tlie   subsequent 
adva:icement    of   a  definite    sun  will  be   satisfaction   in  full   or 
in  pai't   according  to   tie   amount    of    the   legacy  w-^.en  the   v.lll 
becomes    operative. 

This   vie'.T  was   not    al\7ays    tie   lav;,    but    it    is  ;iov;  the    gsnercl 
doctrine.      The   reasoni::g  advanced  by    th.ose   v:'.io  held   to   a  differ- 
ent  viev;  was   t]iat    tiie  le;^acy  must   be   in  t/ie   n&.tui'e    of  a  portion 
whenever   it    is   satisfied  by  a   subsequent  portion   or  advancement; 
tliat    if    it    is    indefinite    in  amount    iz    car:not  be    regarded  as   a 
portion. 

(4)  An   advancement   made   to   a   cau^hter  upon  her  roarria^e 
will    satisfy  a.  previous    legacy;    so  also   if  tlie   advanceMent    is 
7Viac  e    to   the   daughter   and  her  husband,    and  possibl;-^   if  ix^de   to 
t].e   liusband   alone. 

14  Pick.  518 

3  '^are  509 

Law  Kep,,  4  Eq.  Gases  ol7 

If  a  testator  inakes  a  provision  in  his  will  in  f;,'."or  of 
a  child  or  a  stranger,  and  rubsequnetly  during  life,  pays  money 
to  the  beneficiary,  Y:ho  in  accepting  it  achnow ledges  Sf-me  to 
b?^  in  discharge  of  the  prior  pro^asion  in  the  v;ill,  then  the 
T^rovision  will  be  sat  isf 'Ction  either  in  \:hole  or  in  part  as 
the  case  may  b  e. 

If  money  is  paid  b;/"  a  parent  to   a  c'lild  it  v;ill  not  as 
a  rule  be  regarded  as  in  satisfaction  of  a  legacy  subsequently 
giver.   The  nale  is  different  however  where  a  r-^ceipt  of  money 
has  been  acknowledged  by  the  child  as  satisfaction. 

It  has  been  held  tltat  ^.....^_  payment  of  different  sums 
at  different  times  by  fie   parent  to  the  c]aild  for  w'lom  a  legacy 
has  been  provided  in  a  v/ill  will  not  be  regarded  as  satisfaction; 


717.,  EQUITY      J  TT  K   I    H  P   R  U  D  7.  7   C  E.    SR,  77. 

t/ie"  will  no-t   "be   e.dded  tocetlicr   for    the  pui-pose    o""  producing 
?.   srt  isfaction,      Of-Ler-vise    if    the    child  acknov:lod;-;es   pa,-T»ier.t    of 
money  to   be   in   satisfaction   of  a    le^jacy  slreaoy  provided  in 
his    father's  will,    or    -oo   be    in   satisfac:;ion   of   legacies   that 
::is  pcirent  may  provided   in  the    future. 

DICTATION 

Small    sums   of  money   advanced  by  a  parent    to   cMld  from 
time    to  time   will  no:,    as  a    n.;le ,    be   regcrded  as   satisfaction 
cf  a  previous    lei^acy,    or   of   a   subseq\;<ent    le^jacy.      The   conclusioii, 
however,    must   be   different    in  the    case    of   an  a::reeme:it   by    the 
child  that   the   money  advanced   shall  be   a   satisfaction. 

'O'leroy,    vol.    I,    para,    560-4 


T^n^M 


10  Watts    5 


"* 


A   leeL'acy   that  I'las    ceen   satisfied  by  an    advancement   under 
t'-is   coctrine  ma.y  be   revived  by  a   codicil  attached    to  the    t.111. 
An  ex:"ress   reference    to  a   lei;;acy   in   the  cocicil  that   has  been 
satisfied  treating;   the   legacy  as   still   in  force  would   operate 
as   a   revival.      3ut    the  reference   to   the    legacy  must   be   express. 
The   cocicil  that    simply  affirms   the  provisions  made    in   the   pre- 
ce.^dinr  will  will   not  be    regarded  as   sivinc  nev/  life   to  the 
legacy  that   has    alreac'.y  been   satisfied  by  an   advance j:ent.    'ii\e 
refe'-ence     must   be   a  syecific    one    in   order  tlio.t   the   cod.icil 
she.  11  become    operative. 

DICTATION 

The  legajy    .iictt    has   been   satisfied  by  advar. cements  iriay 
be    revieved  by  a   coaicil,    if   special   reference   is  ria.de    in  the 
coc.icil   to   tls    lee,acy,    but   not    otherwise. 

Roper   on  Lecc-cies,    Gta.r  page,    346 

Pomeroy,    Vol,   para,    561 
In   the  main    the   propositions  that   I   har/e   given  :-.'0u  thxis 
far  under   this    subdivision   of    the    siibject   apply  both  wr.ere   there 
is   a   lef;acy  followed  by  en  advancement    and  wi:iere    -aiere    is   a 
portion  followed  by  e.  legacy.        But   here   is  a  qtialif ication 
that    I   wish  vou   to   bear  in  mi?.d:    TJT^  PRESIJI^'TIOII  0?  AIT  IITTSITDEL 
SATISZACTIOIJ   IS   LRSS   STRa^G  '^fTSn   Tl^  SETfLEI^^lTT    OR  AGR::E:a^IT 
FOR  A  P0RTI017  PRECEDES   the  will   than   when    tlie   will  precedes   the 
settlement.  If  a  man  makes   a  provision  for  a   legacy   in  his 

will,    the    whole  matter   is   under  his   control  until    the   v/ill  be- 
comes   operative   by  his    death.      He  may    strike    out    th-e    legacy 
entirely   or  he  may    satisfy   it    oy  an  ad"-ancement ,    and  he  may   do 
t:--j.s  without    consulting   or   ob-aining   the    cQisent    of  the  pai-ty 
for  whose  benefit   the    legacy  was    iiitroduced  in    the  will.     But 
where   there    is   a  settlement   or  an    agreement  to  make   a   settle!;:er.t . 
there    is   an   obligation  resting  upon   the  conor  and.  an   interest 


TIZ.  E   Q   U  I   T  Y      ?'  U  r:   I    S  f   .R  U  :D  }?-  N  C  E      ^':,  78 

vested   in   the   donee.      7Iere    is    a  contrf.ct    ri^ht   v/'.ich   t.''.8    ^es- 
t£i.uor   ie-    Douiid   to   r-3C0_.rj.ze. 

DICTATION 

Tl-^ile   a  presiinption   of  an   intended   satisfaction   exists 
in  case   s.'  a      lec^tcy  follov;s  an   a-~reeiner.t    for  a   set'. lejnent   th* 
£a':e  as   it   does  where   t}ae  s ettlenen t  follov;-s   the   legacy,   yet 
in  the    former  case   the  presui'ipt ion   is   not    so   strong  as    in  the 
letter  for    the  reason   t-ha  t  tlTere    is  a  contractual  ohlication 
from  v;]ich    tlie    tecta^or   cannot    escape  v/itl^.out    the    consent    of 
t"'.e  ^'arty  for  v/hose   henafit   it   has  "been  niade .     V-^hile   such  a 
presump-:ion   is    reco  nized  and    enforced   it    v;ill   alv/ays    ret:    It 
in  t;i3    courts   giviji.;  to   the    conee   the   il.sht   of   election, 

2   Law.R  Ch^    Cases   504 

Poraeroy,    7ol„    I,*para,    565-8. 
Snell'E  Principles    of  7.q_vdty,    242-7. 


T.IF.  IIEXT   QUIZ  ^■•ILL  B?::  LPON  Th  :   GU3JJ-CT   Oi'  SATI f.::;7.CT I rrj 

a:p;  tj":^  cases  iz:  T:W.  casi^  book  ifoi:  t?:at 

Sl^3  JJ^CT . 

The    suToJect    '.hich  I   v.lli   r.ov;  take   up   is  a   suhjcct 
of   ;;;reat   practical   ilq-'ortance    on    DOth   the   lav;  and  equity   sides 
of    the   court.      The   coctrine   of    eqvltahle    estoppel   ori:;inated 
in   eqi'lty,    altho  at    t}ie  present    t  iViC    it    is    very   lar-: -Bly  and 
ahnost   universr-lly   r-3co  nized   in   courts    of    law.      This  inatter   of 
eqi\itf,. ble  estoppel   al'.:ost    always    ccir.as   up'tipon   the   ad-nisss-hilty 
of    evicence   upon    'he    trial  of    actions   at    lav/,    and  the   disc-^cion 
of   the   effect    of   evidence    in  equity   cases   tefore    the    court.    But 
to  recsrd  the    i"ule    of   sstopj:el  as   a  branch  of  Kvidei;ce    is   -lis- 
leading.      The    lav.-  of    evidence    is    a  bran.c  h  of  the   la^.v   of  pro- 
cedure,   but    the   doctrine   of  equitfele   estoppel   extends   further 
thcin  this;    it    is   the    source    of  property   riijhts,    not   nrely  the 
means   by   vrhich  thjose    ri:--;hts  may  he    shown.      Out    of  tliis   doctrine 
of    equitable    estoppel  grows   and    arises   titles  ar.d    contract 
oblit_:at  ions  that  both   equity  ano    lav;   \vill  protect   ana   enforce. 

Equitable    estoppel   is    soniet  imes    spoken   of  as    estoppel   in 
pais.        The  expression   is    liable     oo   mislead  anc     .end   to   con- 
fusion.       EstOi)pel   in  pais   should  be   used   to    describe   certain 
le,/al    estoppels,    t^ie  broader    term    'eqiiityble    estoppel'    should 
l-e   applied  to   decribe   the  e  stoppel  by  cor.:. -act,    t':at    is   ap"lied 
both   in   law  and    equity. 

It    is   difficult  to  £;ive   a   comprehensive    d:":finition  of 
equitc.ble    estoppel,    but    the   follow ini_-  o.efinition   is   perha,ps   as 
;,-ood  a  one   as   can  be   found  for    the    reason   that    it    regards 
eo^uitable   estoppel  as   something  i:iore   than  a  branch  of   the   lav." 
of    evidence:    Equitable    stoppel   is    the    effect    of   the   voluntr  ry 
conduct    of  a  party,   v;hereby  he    is  precluded  from  asserting 


XIX.  EQUITY      J  U  :'   I    S  P   R  U  D  J]  :T  C   ?1.      SK.  7'^ 

rip-hts   v'Mch  he   i:ii(^]it    othsr-./ise  lic^e   ass"rtecl  ao   aj;-. inso    ore 
'.v'"'0  has   J.;:  ^ood    iaitli  relied  v."  on    t3-.is    conctico   and    ciianred 
his   conihict    ac^'ore.i:v:ly .      By  z'/ds   means   riv^hts   and  titles     a:/ 
te    lost    ano    -gained. 

The   essence    of    the  d--finition   is   t]ir!t    if   a  part:/  lias 
"been  mislead  "by   the    conduct    of  anotrier   in   such  a  way  r?   to 
opertLe   to  his  prejudice    if   tlie   latter   is   allov/ed  to   r'^oudiate 
his   acts,    tlTen    such  repudiation  will   not   be  allov;ed.      The  def- 
inition roco.  nizes   tJicit  pri:nary  rights   are    lost,    and  piriraary 
rijhts  na;'-  he    ca^i^Sfi)    "by   t}'.e   estorpelo 

DIG  TAT  I  Oil 

The   doctrine    of   equitable    estop... el   ori^;inated   in   equity, 
altl'iou'h  at    tte  present    tine,    it    is   very  largely ,    if  not   un- 
i'.ersally   rec  q;:nised   in  courts    of    lav;.  It    is   essentiall;; 

estoppel  by  conduct,    t'^e   v;orc;    conduct  bein^.  used   in   its  nost 
cor.prehensive    sense, 

]:EriiTiTio:i: 

Equi  table  e  stop'-'.' el   is    tin  3    effect    of    trji   volun'oary 
conduct    of  a  party  •'."hereby  he    is   pr -eluded  from  asserting  ri^'hi 
vfr.lch.  '\e  might  other- Ise  have   asserted  as  a£;t;inst   a  p&rty  \./ho 
has  been  Mislead  by  his   conciuct, 

J]quita,ble    esto^ipel  has  been   re^a,rded  as   a  brancii 
of    the  Lav/  of  Evidence,   but   as   this    definition   in;  icctes   the 
doctrine  of   estoppel   is   t  ".^e    soi;rce    of  property  rights   and  not 
simnly  a  .matter   of    evidence. 


r-ec.    14th,'   1903 


:  X.  :C    '-     'J    I    1    "■       J      ,  T    r    ■        ■  ■:     ij    ,,;_     <tK.  79. 

L  r  c  7  u  R  E  X?:. 

oOo 

At   th.a    last    lecture   I  >u.d  called  your    attention  to 
estopoels  in  a  general  way.      The    doctrine   of  equitable   estop/el 
is    essentially  an  equitable    one;    it    originated   in  courts   of 
equity,    a.Ttyicxii^h  equitrble   estop-els   are  no\7  rpco:;nized  at 
la\.'  as  well  as    in  equity.  T'ler^   are  however,    certain   estop- 

pels,   as   estoppels  by  deed,    estoppels    in  pais  and   estoppels 

by  ocquieseuce,    etc,,    --liich  ^o   not   properly   fall  v/ithin 
the    subjoct    ■•^"   equitable   estoppels  unless   tliey  reach  over 
into   this   bri^nch  of   et-toppel  by  ccncuct.      One   of   the   division 
of  the    estoppels  at   ccmiuon   la"/  is   an   estoppel   in  pais,    v-hich 
I  shall    refer    to   in  thiis    conrjection  for    the  pun'ose    of  suggest- 
ing to  you  that   you  must   be   cars/ul  to   distinguish  between 
the    cominon  lav/  estoppels    in  pais   and   f.iis   equitable   estoppel 
by  conduct.     Ustcppel   in  pais   arose   out    of   th.o   conduct    of 
the  parties,   but    its   essential    c^mracteristics     are   ver:/ 
different   fron  equitable   estor.pel,     re   sometimes   find   that 
text  writers  use   the    teir.is   indiscriminately,      xln.t    is   con- 
fusin"  and  :r.isleadin:^«      TJiis    equitable    estoppel   is   the    ori-jin 
of   ri^ihts   and    title,    priimiy  positive    ri.-jhts   and   not    simply 
a  matter   of    evidence.        The    cominon   la'.v  estoppels   in  pais 
\;ere   never    favored  by  the  courts,    and    they  were   spoken  of  as 
odious.     -  The    le^^al  estoppels   in  pais   are:    (Ij   By  Liv?ry,(2) 
By  Entry,    (3)    3y  Acceptance   of  Tent,    (4)   3y  T-artition,    and, 
(5)   2y   the  acceptance   of  an   estate.        Those   are   the   cojm::on 
la'^  estoppels    to-day  v/ith  the    exception  of   those   r'^ich  have 
become    obsolete    on  account    o.     dit /i^ed  conditions. 

The   estoppel  by   livery  worked  in   this   v;ay:      A  man  who 
had  given   livery  of    seir:in  was    aeemed   to  be   estopped   from 
doing  a  ry  thin  "  to   contrdict   that    livery,   just   5,s   a  mfin   is 
estopped  from  denying  his  written  cori-,'eyance  . 

Another  of    thes^-    common  la-i7  estoppels  was   by  entr;.'.    If 
a  party   entered  into   a   lease   at   coininon  law  v;hich  was  xin^er 
SdtO.     he   was    estopped  from  quest ior  in,.;   the   landlord's   title. 
Y/e  lji.-j'e    at   pmgsent    the   comir.on   law  estoppel  by   entry,    but    it 
is   scraevrhat   diffei'ent   from  the   olc     estoppel  because,  it  arises 
\7h ether  the  lease    is   under    seal   or   not   u.nder    seal. 

One  p':culic'r  thin.^;   about    these    common  law    est-opi  els   was 
that    the   i-'arty  was  precluded  from  speal:ing_  the    truth,    not 
because    equity  and  justice    demanded  that  he   be   precluded,    but 
beccuse    of   t?-.e    seeming   importance    of   observing  a  settled 
maxim  of   lat.-.        So   in   sucli  a    case   it   war    impossible    for  a  party 
to    £'et   justice   except  by    :oing   into  equity  end    askin^   the 
court   to    restrain  the  e  nf  orcem. an  t  of   the   strict    legal   rule 
for    the    reason    tl:  at    equity  t.r)C   justice    :iequired    that    restraint. 
Inasmuch  as   these    common     estoppels  were  hars-i  in  nature   they 
soon  becama  to  be    odious,    and    the    courts   weald  not    recognise 


XX  E   Q   U   I    T  Y     J   U  R   i    S  P   r.  U  D  E  U  C   S.      S  R,      80 


i-v  , 


tlie  esto^;el  unless   the  frets    clearly  incicated  thr  t    tl 
case  vfds  clearly  mthin  tlie    rule    of  the    estO:'pel   in  i-'cis. 
The    court    rquiring   in  plee  c-r.ji::  an   estoxipel   thrt   ^reet  prrti- 
culariiy  he    observed.        It  '-iiist   he   particulrr  to   a   certain 
intent    in  larticular, 

/n  e quite  hie   estovpel  arises   fror>i   non^'ict,    hut    it   has 
never  heen   regarded  as   odious,    for  the    re&s on  that   the    ohject 
of  an   equitable    estoppel    is    to  work   out    in   ever    case   Justice 
between   the  pf.rties.        It    is   ay'-^-lied  that    equity  and  Justice 
may  be   done   in   individual  cases o 

The   equitable    estoppel  wr.s    seir;ed  upon  by   the    corB.ion   lav/ 
courts   for   the  purpose   of  lengthening  the   pr.a  of  the   coromon 
1:  v;  courts  and    reachinj:   out    and  acljudicfctinc  matters    tlict 
could  not  be   reached  and   stisfactorily  adjudicated  uiader  the 
...strict    rule   of  le^al    estoppel,      so   quite    early   in  tre  history 
01    equitable    estoppels   v/e   finr,  the    coinnon   la-.?  courts   adopt- 
ing  them. 

In 

Horn  Vo    Cole,    51  IJ.IIo    287,    Crse   Boo]c   lOQ 
is   contained  the   T:hole   doctrine    of    equitable   er-to;-    el':    It 
thus    appears   that    '-liiat  has  been  called  an    "equitable   estoppel" 
and    sometiir.es,    v/ith   lesr^  prcp>-iety,    an   "estoppel   in  p:.  is"    is 
properly  and  peculiarly  a  doctrine  of    equity,    originally   in- 
troduced there  to  prevent    a  party  from  taking  a  dishonest   and 
unconscientous   advanta^^e   of  his   strict    legal  rights, — though 
v,\:ff  ^7lth  tis,    like   m.ny  other   doctrines    of    equity,    hahitaully 
a>.iinistered  at    law,      Eut    fonnerly    the  practice    m-s   cifferent, 
a  :d  {juits   at    la'.;,    t}ie   courts  b=?ing  in cr;  able   of   giving  effect 
to  this    equity,    wero   cften  en;^:oined  v/here   the  p;.rty   insisted 
on  his   rijgiits   at    lav;  contrcy    to  the   equitable   doctrine  as 
in  Rav,'  v,   Pote,    rtiles  v,    Oc'.;per,    and  T-ebber  v.   ?ari..er,    q^oa 
supra. 

It    v/ould  have   a  tendency  to  ^.lislead  us   in   th^e  present 
lnq\\iry,    as   there    is   reason  to   .  suspect   thct   it    ■ics    some- 

times misled   others,    if  we    should    confound  this   doctrine 
of   equitable    estoppel  v/ith  the  legal   estoppel  by  natter   in 
pais.      The    equitable    estopriel  and   tP.e    legal   estoppel  agree 
indeed   in  this,    thc.t   they  both  preclude   from  shov/ing   the 
truth   in   xhe    indisric/aal    case.      The    grounds,    ho-.vever,    on  which 
they  do   it   are   not    only  different,   but    directly   opyosite.   The 
legal   estoppel   shuts   out    t'-e    cruth,    end   also   t:i.e    equity  and  _ 
justice   of*  the    inci-ridual  crse    on  acccxnt    of   the   supposed 
parai'.ovnt    importance    of   rigorously   enforcing  a   certain  and 
unverying  maxim  of    t]ie   law.      >'or    i^asons    of   ge::eral  policy 
a  rf'cord   is   held  to   im:'ort    incontrovertible   verity,    aiid   for 
the    siv-.e    reason  a  party   is   not   pennitted  to   contradict   his 
solemn  ad;  lis  si  on  by  deed.        And   the    srme    is    eqi^rlly   true    of 
le^-c.l  estoppels   by  matter   in   oais.      Certain  acts   done    out    of 
court    ai.d  without    oeed  v/ere,    by  a  techjiical  ai.d  'unyielding 
rule   of   law,    up'ield  on   like    grounds    of  public   policy,    and 
foljowed  always  by    certain   le_,al   consequences.      The    l-i,;al 
effect    of   such  acts  v/as  not   permitted    :o  be    controverted  by 
riroof . 


I-OC.  EQUITY     J   L   R   I    ^  r  P  TJ  j;  E  >I  C  T^.      81%    61. 

7or    this    reason,    "beccuse    legtl   estoppelp,    -.'zethBr  by 
record,     deed,    or  rartter   in  peis,    shut    out    :-)roof   of  ths  truth 
and  justice    of    indiyidual  cases,    t}ie:,'   :-ave  "been    called  odious, 
and  have  "b.^en  construed  r.-ith  much  strictness     against  parties 
tp.at    set   t^ieTi  up. 

Equitable   estop-  els  are  aciiitted  on  the   exactly   opposite 
ground   of  ^n'omoting  the   equity   and   justice    of   the    individual 
case  by  preventing  a  party  frora  asserting  his   rights   un<.  er 
a  general  tecnical   rule    of   lav/,   v,'hen  he  has   so   conducted 
hi:nself  t'\a~^    it    would  be    contrary  to    equity  and  gooc'    con- 
science  for   aim  to   aliens  and  prove   the    truth," 


DICTATION 

Fe   should  be    careful  not    to    confuse   equitable    esT:o")pels 
Vifith  let^Ll    estoppels    in  pais,      "^^quita.le    estoppels   arise 
from  matters    in  pais   aiid   are   hence   perhaps   an   outtjrovrth  of 
lejal   estoppels    in  pais,    but    they   are    to  be    distin^-uished 
fro:n   ther.   in   that   the    ror.-ner  have   their  foundation   in  justice 
and  good   conscience,    \;hile   the    latter    simply  enforces   a 
rule    of   law  irrespective    of   the   equities    of   the    g  se.      "Equitable 
estoppels   have   been    developed  by    courts    of    eqiiity,    alt:iou,_:h. 
they  are   now  applied  by   courts    of   law.      Both  Irinds    of   estoppels 
preclude   t^ie    showin^-   of    the    truth   in  the   indicidual    case,   but 
they  do    it    on  distinct!;'   opposite   (^"rounds, — the    le,_al   estoppel 
in  order  to    enforce  a  rule  of   law, --the   eqixitable    estoppel 
in   ore  er   to    vrork  out   justice   aiv.     equity   oetv/een   the  parties. 

Po:neroy,   para,    802 

51  li.::.   287,    111.    Cases   100) 
I  will  now  state    to   you   specifically  what    I   have 
said  parenthetically,        ^"it  h  a   sinjle    exception,    equitable 
estoppels   may  be    insisted  upon  and  urged   in   courts    of   Ih.vf 
just    :s    freely  as   in   courts   of   equity,    and   in  orrer  thi.t   the 
court    of  equity  :,iake   take    or    retain  jurisdiction   of  a   case 
of  equitable   estoppel   it   must    a -pear  that  there   is    some 
other   reason  for    t'le  jurisdiction  besides   the  equitable 
estoppel, 

DICTATION 

Although  these    esto""7els    are    called  equitable   they 
are,    with  perhaps  a    single   exception,    enforceable    in  courts 
of   law  as   v/ell   as    in  courts   of   equity.      The   2n^- re   fact   tliat   a 
case    involves   a  question   of   equitable    estoppel  will  not    of 
itself      give    the    equit;-   courts   jurisdiction.        It  T.ust   a  pear 
further   that   there    is    something    in  the    ce.se   thrt   demands 
equitfeble   cognizance   and    that   the   party   is    entitled  to   some 
one    of   t""e   equitable    re;:iedies, 

100   U.  ■.    578(    111.    Cases    107) 

126   U.S.    241 
49   !.!ich.    444 


:'ji,  E  q  u  u.  .        J  u  P.  I  c  P  K  Tj  r  E  :t  c  E  »  ck,  82. 

Tou  ■bCiOro   expZc-inin::  to  you   i:i  detail  tlie    est^entials 
of  an  Qcuita"ble   estuppel,    I  \;ish  to   discuss   r   ivrelimiary 
question  that  has  jiven    ths   courts  no   little  trOL-ble 

Is  fraud  essential  to   an  equitc.  cle    estoppel? 

'  nCTATIOlI 

As   a   rule    it    ir.  not   necessary   to    s  in'.v   fraud   in   order  to 
raise   a,n   equitable    estorpel.  '   ■'"here   this   esto  pel   is   recO;  ni- 
zed   in  the  a"bsence    of  fraud   it    is  "by  force    of  the  T)rincipl8 
the.  t  v.'here   one    of   two   iniiocent  persons  must   suffer,    the   loss 
nust  "be  "borne  "by  the    one  whose    ccncluct  has  rendered  the 
result   possi'ble. 


--oOo 


Eec.    16,    190: 


XKT.        EQUITY      J  U  R  I-S  P   R  U  D  J^  N  C  E.    SR.  83. 

LECTURE     XXI. 
oOo--" 

Eraud  at    the  present  time    is   not   usually   regarded  as 
ail   esseaiial   el3i,.G::t   to  an  equital)!^    estajpel,    altho   you  v;ill 
find   soT-e  cases   trx;,t  hold  to  the    contrary.      If  v;e   v;ere   to  }iold 
tl-at   fraud   is   essential   to  every   case    of    equitable    estoppel 
nian;/   estoppels   tfet   have  been    recOe:nized  by  the    courts   could 
no   longer  be  enforced.      Take    the   case   of  a  party  taking  an 
apparently   certified   check  to  the   bark  in   order  to  ascertain 
its   \'a,lidity.      The    teller   assures   Iiim  it    is   all   rit:ht,   '2lie 
bank  v/ould  be  estor.ped  fran  denying  the  certification.   But    in 
a   case   of    that   kind  tliere  \7culd  b5  no    fraudulait   intent   on  the 
part    of    the  teller.  Take   the  case   of  property   in  the  hands 

of  a  party  to   wjioin  it   apparently  belongs.     Another  party     asks 
hin   if  lie  has    tloe   title    to  it.      The  party  fearing  that    sone    of 
his   creditors  nay  desire    to   levy  upon  it,    says    that    it  beioi:.gs 
to  another.      There    is  no    iiitention   to  deceive   tlie  party  in- 
quiring because   he    is   not   a   creditor.      Under   those  c  ire ur. stances 
there    is  no    intension  to  defraud.  But    in  a  proceedin  o.^cir.st 

the   goods  as   those    of  another   the   owner  vjo  uld  be    estopped   from 
clainiin^  them  as   !:is    ovn  , 

There   are   rery  many    cases  wliere   fraud   does   not    enter   in 
that   the   courts  hold    to  be   equitable    estoppels. 

Undoubtedly   in  most    cases    of    equitable    estoppels   there 
is   fraud    either   cctual  or    constructive.      In  nine    cases    out    of 
ten  the   step    is   taken  to  deceive    sane  party,    but   that  fraud   is 
not  absolutely'  necessary  to  the   existence   of   the   estoppel. 

Eraud   is   essential  to   an    equitable    estoi:)pel  from   one  point 
of   view.      It    is   certainly  fraudulent   for  a  person  to   c lain  the 
advantages   of  an  estoppel  under    circumstances  where    it   ^.Tould 
be    ineqi.;itable   for  hin  to   do   so,    and      it    is   certainly   frav.dulent 
for  a  r.-'erson  to  c  kiin  t]X:.t   he    ought   not   to  be  bound  hy  fhe 
estoppel  v.here    equity  und  justice    require   that  he   sJiould  be 
bound  by  ■!h e    estoppel. 

It  is  also  argued  that  actvri,l  fraud  nust  exint  before  an 
equitable  estoppel  can  be  maintained.  Excepting  i-  one  c  kics 
of   cases  actual   fraud   is    not    essential. 

EICTATIOII 

Eraud   is   not   an   essential   ingredient   of  all  equitable 
estoppelr. .      V.Taere   an  estoppel   is    recognizied  in  the  absence    of 
frnu-d   it    is  by  force    of   the  principle   t'-nt  v/hen  one   of   tv/o 
innocent  persons  nust    suffer   it  must  be  borne  by  tlie   one  v/ho 
by  his   conduct   has    rendered   th^    injury  possible. 

In  many   cases   of    equitable    estoppel   the   fraud   is  found 
in"  the   subsequent   atter.pt    to   controvert    tr£    representation. 

3  Adolp  &  Ellis,  469 

50  IT.Y,  575 (  111.  Cases  110  J 


XXI.  EQUITY     J   U  R   I    .S  P   RU  E  E  IT  CE      SR.  6-1, 

69   IT.Yo    113 

SI  :i.Y.    287  (    111.    Cases    100) 
£7  ?enn.    89    (    I].l.    Cases   114) 
93    Ind.    570 
71  L.RrAo    522 
Voneroy  para.    803--5-6. 
see    contra: 

93   U.S.   326(    Opinon  delivered  by  Justice  7ield) 


Here    is   an    exception  that    I   wish   to  I'npress   upoji  you. 
Eqidtalole    estoppels   v/hon   they  affect   tlie   title   to  real  pro- 
perty,   that    is,    v.'iaere    the   title   to  real  property   is    souc'-t    to 
"be   changed  on  account   of   the    equitahle   estoppel,    the  party 
against   v/hom  t  h^    estoppel   is    souclit     to  he   urged  must   he  s /ov.ii 
to   h^ve  been  gnilty  of   actual  fraud,    or   such  neg licence   as 
would  he    regarded  as   the    eqijiivalent   of  fraud.      This   difference 
is   due   to   the   statute   of    frauds.        In  most    cases  where   ec.uit- 
able    estoppel    is    relied  upon  as   affecting   tjie   title    to    realty'- 
fhe   question  arises   on   the    equity  side   of  the  court,    but   it   riay 
arise   on  t'^e   law  side    of  the   court   v/here  a  person   in  possession 
of   real  proper_^ty  8.nd   cl?lraing  title    thereto     by  virtue    of   the 
equitable   estoppel   is  proceeded  against  by  the  holder   of  the 
record   legal  title. 

V.Qierever  you  ask  the   court    to   change    or  transfer  the   legal 
title   to    real  property  and  base   your    action  upon  an   equitnYle 
eston~'el  you  must    in  mailing   out   I'Ovlt  prima  facie   case    sliov; 
fraud,    on  account  of    th-e    Statute    of  Erauds  t/Mc  h  requir§s    the 
transfer   of   real  property  to  be    in  writing  and  nothing  will 
replace    that    statutory    requirenient    except    fraudulent    acti  on. 

If   to  allow  a  person  to   shield  himself  behind   the   Statute 
will   result    in   fraud,    t'len  equity  will  not   permit    ii  e    statute 
to  be  enforced. 

DIG'JATIOIT 

But    in   case   the    eq\,iitable  estoppel  will  affect   -fii  e  title 
to   land   it  must   ay.pear  that   the  part/    against  v;ho:n  the   estoppel 
is  urged  has  been    juilty   of   actual  fraud,    orsuch  negligence 
as   v:ould  be  equivalent   to  fraud.      This  because   of   tlie    re- 
quire:-;ents    of   iiie    Statute    of  Erauds. 

Pomeroy,    Vol.    II,    para.    807 

34  Tacii.    383 

104   111.    235 

102   111,    514 

Every  equitable  estoppel    in   o;-c.er  to  be  urged   as    such.  :iust 
contain   certain   elements.      In    the   first   place (1)    There  must 
■have  been  COITrUCT,    eitlier   in   the  form  of   acts,    language   or 


7X1,  EQUITY     J  U  R   I    S  P   R  U  IJ  E  II  C  E        SR.  85. 

silence,    rmounting  to   a  representation  or  concealTiiCnt   of  fycts. 

DICTATIOIT 

ESBEIITIALS   OP  EQUI TABU^  ESTOPPEL. 

(1)      There  must   hr.ve  been   conduct,    either   in  the   form  of 
acts,    langur.ge    or   silence,    ainovmting  to  a  representation  or 
concealment    of  material   facts. 

102   U.P.    68 

51  IT,.!!.    324 


But    the   statement    constituting  the  representation  need 
not    necessarily  he   an   express   one.      It   usLially   is   an  express 
one,    hut   it    need  not   rscessarily  he.     V^Tiatever   is  natiirally 
implied  from  the   languc.ge   used   if    it  has   induced  action  mcy  he 
the    casis    of  an   estcppel.      Supi-ose,    for   example,    I   am  ahcut 
to  purchase   a  mortgage   security;    I   go  to  the  mortgagor  and 
ask  Iiim  if   the  mortgage   is    all   right,    if    there    is    v.ny   defense 
to   the  mortgage.      He    says  in   reply,    not   directly,    'I  hr.ve   no 
defense,    the  mortgage    is   all  ri  glit ,  '   hut,    '    do  not   usiially 
execute    securities  luiless   they  are   good.'      Thct    is   not   a 
direct    statement,    hvit   he  would  he  estopped  under  the   circLuii- 
stances  hecause    it   v/ould  he  necessarily  implied  from  the   lang- 
uage that  he   uses   under  the    circumstances   that  he   represented 
the   security  to  he   good. 

LICTATION 

The    statement   constituting  the   representation     need  not 
necessarily  he   an    express   oneo     Y/liatever   is   naturally   ir.rlied 
from  the   lang"uage  may  he   taken   into   consideration. 

Bigelow  on  Estcfir.el,    p    570 

L.R.    10  C.P.   DiY.    307 


In  order  to  work  an  estoppel  the  representation  must  he 
such  as  would  naturall:"  lead  a  man  of  ordinary  pi-udence  to 
act  upon  it.    The  mentality  and.  experience  of  a  man  must 
always  he  taken  into  consideration. 

DICTATION 

Extravagant  statements  cannot  he  the  hasis  of  an  estoppel 
ordinarily,  hut  the  intelligence  and  experience  of  the  person 
must  always  he  taken  into  consideration. 

Bigelow  on  Estoppels,  p  572 


XZII.  EQUITY     J  U  R   I    S  P   R  U  I>  E  11  C    ,^.    GR.      87 

L  E   C   T   TJ  R  E     XXII. 

— -oOo 

(continued   from  le. st    lecture) 

represe:ttatioh  irrjsT  be  crjiTAiN. 

Bigolov;  on  Estoppels,    p.    579 

41  Mich.    472 

41  Mich.    453 

38  Mich.  475 
ITUST    BE  TAI'DiaJr   III   ITS  NATURAL   SENSE. 

Bigelow,  p.  580-1 

29  Mich.  228 
CAlTi'OT   BESITLARGEE. 

Bigelow,    p.    582 


At    the  close    of    tlie   last    lecture    I    called  your    attention 
to   the    essentials    of  a.n   equitable    estoppels.        A  representa'^. ion 
to   he    the  "basis   of  anequitahle    estoppel  raust   he  inaterial  to 
the  transaction.      It  raust   have    induced  action  of    some  kind   on 
the  part    of    the  party  claiming  the   benefit    of    the    estoppel.      The 
conduct    or   repreEentation  need  not   to  have  "been   the    sole    in- 
ducement   to    the  a,ction.      If   it    is    one  of   the   several   induce- 
ments  tliat  }iave    led    to    the   action   on   the  part    of    t'ae  p  er:- on 
cl^.iming   the  henefit    of    t'ne    estoppel  that    v;ill  he  suTficient. 
The   lule    is   the    same   as   it    is    in   connection  with  fraudulent 
representation.      If  the  party   vould  not  Mve   acted  hut    for   th; 
conduct    or   representation  tlien  it  i-aay  he   the  ho^is    of  an  esto"cp- 
el. 

DICTATION 

Wliile   the   c  onc'aict    tlB.t    is   at    the  hasis    of   the    estoppel 
must   he   mcteria-l   and    such  as   t  o  produce    action,    it    need  not 
have  heen   the    sole    inducement.      If    the   party  would  not   have 
acted   except   upon   the   inducement    then  the    inducement    is   sufTi- 
cient   as  a   bi  sis   of  an  estoppel. 

Sicvelow,    Estoppels,   p.    582 

A  KRPPJ]SE:iTAflON  CAITNOT   BE   THE   BASIS    OP  AN  SSTOrPEL 
UNLESS  IT  II/.S  BEEN  EREELY  LIAIE.      If   it    is    in  a  ry  way   the    result 
of   duress   or   fraud,    it    cannot   he  urged  as   a  has  is    of  an  estop- 
pel.     As   an   equitahle    estoppel  is    essentially  a  creation   of 
equity  jurisprudence    if    tliere    is   ar^ything   in  the    transaction 
to    indicate    inequitahle    i.'.ct  ion   on   the  part    of   the  party   cL.im- 
ing   the   benefit    of    the    estoppel,    tlie   estoppel  will   'lOt   he 
allowed. 

In  the   44  N.Y.    396,    you   v'ill  find  a  good    ii:LUstrat- 
ion   of    this   principle.      There   a   sale    v;as  made    of  a    certain 
nvunher  of  watches   thot    were    :^presented    to  he   of  a   certain 
grade,    and   the  party  ^.ui-chas  ijig  agreed  to  pt.y   a  certain  price 


XXII.  EQUITY     J  U  R   I    G  P   R  U  D  E  il  C  E.      SR .      68. 

xor   a  first    c,rsire  watch.      As  a  raatter   of  fact   the  watches 
were   of  an  inferior   quiality.      The  party  making  the   purchase 
was  not    an    expert    in   siich  matters ,    and  the    situation  was   such 
that  he    was    obliged  to   rely  upon   the    representations    of  the 
party    \7ith  w'jom  he  was   dealing,      /f    security   for   the  payment 
of   the  purchase   price   the  purchaser  gave  a    real   estate  mortg- 
age,   and   in  order    that    the  mortgage  might   be   negotiated   the 
seller   induced   the  purchaser  as   a  part    of   the    transaction  to 
sign  a    statement   to    the  effect    that    the  mortgage  was   given 
for  a  good  and  valuable    consileratior      and    th  t    in  connection 
with  the  transaction  there  had  been  no   fraud.      Ordinarily  the 
purchaser   woulc   be  estopped   from  setting  up  unfair    def.ling,    but 
the   v^hole   transaction    vas    vitiated  by    the    fraud   of    the    seller. 
The    court  held  tiTat  v.iTen  the  mortgage    ca^ne    to  be   foreclosed 
the   fraud  of   the    original    transaction  could  be   interposed  as 
a    defense,    ^Jid    that    this  paper  whould  not    operate   as   an  estop- 
pel, 

DICTATION 

A  RT]PRESE]TTA-^ION  CAIJITOT  BE  TIE  BASIS  OE  /JI  ESTOPPEL 
if  it  }aa.s  been  obtained  by  duress  or  by  fraud,  or  by  artifice 
of   any  kind, 

Bigelow  jDn  Estoppels,   p.    583 

59  Iiich.    509 

44  N.Y.    398 

46   5.Y,    1 
A  party  may  be    estopped  by  his    acts,   by  means    of  langur.r^e 
or  by  means    of    silence    or   concealment.      If  a  party  makes   a 
representation   that   is  not    true   by  which  another   is  mislead   to 
his    injury,    in   oraer    tlian  an    estoppel  may   arise   what  must   be 
the  knowledge    of   the    facts   on   the  part    of  the  party  making  the 
representation?      Here   is   a  party    remaining    silent    ".'hen  it    is 
his    duty   to    ^eak,    and    sees  his   property  transfered    to  :  nother. 
TJncer   those    circumstances  usually  the   party  vd.ll  be   prohibited 
from    claiming  his   cood  or  property  thereafter.        V.Qiere   a  party 

remains    silent  when  it    is   his    duty  to   speak  he  "is   guilty   of 
fraud.      But   mere    silence   alone    is   not    sufficient      under    some 
circumstances   to   an    estoppel.      If    the  p- rty   rema.ining   silent 
does   not   knov;  th^  t  he   has  an   interest,    so  that  his   silence 
does   not    represent   a  fraudulent    attitude    on  his  part,    then  his 
silence   cannot   be    the  basis    of  an'  estoppel.      In  orcer   tht.t 
silence  be    the    basis    of  an  est o.- pel    it   must   be  the  person's 
duty  to    speak.        In  order  that    silence  be  tlie   basis   of  an  es- 
toppel,   that    silence  must   have   been   induced  by   fraudulent    in- 
tent   on   the  part    of    the  person.      An   innocent    silence   C£ui  never 
be    the  be:  sis   of   an   estoppel. 

EICTATION 
V.rhat  must  be  the  knowledge    of  the  party  who   is   estopped 
by  his   representation   or  by  his    silence?     A  party   is   estopped 


XXII.  T^   q  TJ   I   T  Y     J  U  R   I    S  P   R  U  D  E  i:  C  E.    SR.        89. 

"by  his    silence    only  v;hen   it    is   his   duty  to   speak.      No   estop;. el 
if   a  party  remains    silent   without   knov.lng  of  his    interest,, 
unless   it  he  under  such  circunstances   that  negligence  may  he 
imputed. 

10  Adolph.   &  Ellis   90 

82   N.Y,    32 

82   II.Y.    327 

41  Mich.    54 

Bigelow  on  Estoppels,    595 

107   N.Y.    310-16 


Suppose   the    estoppel   is  claimed  by   virtue   of    the  words 
or  acts   of    the  party  what  must   be    the    attitude    of   the  party 
using  the  words    or   indulging   in   the  acts   in   order   that  he  may 
"be    estopped?     ^'ust  he   Icnow   the  truth,      I    think  the   fol.]ov;ing 
propositions  vdll  be  found   to  be  sustained  by   the  authorities: 

(1}  In  orcer  thxat  estoppel  may  arise  by  virtue  of  words 
or  acts  it  rr^ust  appear  th^t  either  the  party  had  actual  imow- 
ledge   of  or,  (2)    t  Ixit   he  acted    reckless  ]y  wit'^iout   Imowing 

tlTB  truth  or  falsity  of  his   position,    or,    (3)    tJir.t   he  made   th.e 
rer)resentat  ions   under    circujnstances   v/here   he    is  bound  to  laiow 
thi-  truth.        If  he    acted  unaer    circumstances   in  which,    on 
account   of   his    relation  to   the  facts,    he  was  bound  to  knov/  the 
truth,    then   even    though  he   did  not    know   the  truth,    the   repre- 
sentation may  be   the   b.^sis    of   an   equitable    estoppel.      If  he 
thinks   }ie   i-aiows   the   facts,    if    there    is   no   duty  resting  upon 
him  to  know  the  facts,    and  makes   the    representation  uncer    rucii 
circumstances    as  would  lead  an   ordinary  man   to  make    the   rep- 
resentation,   his   representation   cannot   be   the   basis   of  an 
estoppel   any  more    than  there    could  be  an   action  grounded  iron 
fraud.        Eqtiity    vail   not    impute   an  unfair  motive. 

As   a   general   rule    it  may  be   said   that    a  man  is  presumed 
to  know  the  t  rutli   in    regard   to   the  facts  within  his   own  special 
means  of  knowledge.      If  a  man  is    so    situated  tliat   ordinarily 
he   would  know  the   truth,    the  court    v.lll  assume    that  he   does 
knovr  the    truth. 

There    is   an  illustration  of    this   principle    in   tlie    117   U.S. 
96,    L.   Mfg,s.    Bank  v     Morgan,    to  vhich  I    think   I    called   your 
attention  before.      A  man  makes   deposits   through  his   agents 
with  his   bank.      The   deposits    are    in   the    form  of   checks.      Prom 
time   to   time   the   checks    are    raised  by  his   clerk  who  makes    the 
deposits,    and  the   balance  placed   in  his   pocket.      So    that   the 
man's   account,    as    it    is    represented    to  him  by  his  bank  book, 
is   no-i   his    true    account.      Under    such   circumstances   ]ie  brings 
an  action   against    the  baiik   for  tl:©  balance.      In   such    a    case  he 
would  be   estopped   fran   shovdng  the   dishonesty  of  his    clerk.   He 
would  be  bovmd   by  the    statement   of   the   account  as    it   appears 
in    the  bank  book,      -'e   is  not    in   a  situation  to   dispute   tliat 
because   he   is   in  a   situation  to   know  the   facts.      It    is   his 
business  and  duty  to   keep    track  of  his   accounts  by    eKanining 
the  bank  book  v/h£  n  it    is    returned   to  him.      If  he    fails   to  do 
so    and  a   mistake    occurs   he   is    estopped. 


XXII.  EQUITY     JURISPRUDENCE.    SR.  90 

It    is    in   accordance    v/ith  this  principle   that    directors 
of  a   corpci-ation  are  held  to  Icnov/  the   proceedings    of  a    corp- 
oi"at  ion:. 

Although  there   is   some   ccnflict    of  authrotiy,    it    is 
prohahly    correct    to    say   that  ignorance   of  the  facts   due   to 
gross  negligence  will  not  prevent  an  estoppel, 

LI  CT AT  ION 

An  estoppel    from  V/ORTS   OR   /CTS  WILL  ARISE:    (1) 
^Tiere  a  party  knows   the   truth  and  deliberately  rrisrepresents; 
(2}   T^Qiere  he    is    reckless   in  his   acts   or  assertions  making  no 
inquirty  as   t  o  the  truth;    (3)     \7here  he  has    actSd  under    cir- 
cumstances  in  Y^'iichjOn  account  of  his    relation  to   the    facts, 
he   vjv.s  hovrnd  to  knoi:/  the   truth.      He   is  presimied   to  know  the 
truth  within  his   ov/n  specia  1  means   of  knov/Ifido'e. 

117   U.S.    96 

41   111.   85 

Pomeroy,    809,    Vol.   1. 

Bigelov/  on  Estoppels,   p.    612   and   on. 

Long  acquiecence   is    sontitimes  accepted  as   a   sub- 
stitute  for  knowledge   of  the  facts   at    the    tame  of   the    trans.   - 
action.      Thus  v;here   there  has  been  an  honest   diificulty   in 

de- ■  ■  ^'      ^ 

q; 

a ,    ,    „ „._ r___    ^---    . 

party   is    estopped  by  his   agreement   and    acquiesencc    

to    set   up   tlie    true  boundary   if    afterwards   discovered.        This 
doctrine    is  known  as   the  practical   location  of  boundary  lines, 

LI  CT  AT  ION 

LOITG   ACQUIESEHCE   IS    SaiETIMES    .ACCEPTED  AS  A   STJB- 
TITUTE  for  knov/ledge   of   the    facts   at    the  time    of  the   transc.ct- 
ion.      Thus  where   the    true  boundary  line   cannot   be  discovered 
or  ascertained,    a   line    agreed  upon  by  the   acquiesence    of  the 
parties,    v/ill  be   held  to  be   the   division   line   betTTeen   the 
parties,    and   each  party   will   thereafter  be    estopped  froii 
quest ior>''r.g  it, 

87  Tenn.  89 (  Case  Book  114) 

20  Mich.    433 

26  Mich.   322 

45  Mich*    22 

62  Wis.    184 
This   doctrine,   hov/ever,    is   not    approved   in   sane  states, 

Bigelov/   on  Estoppels,    616-20 
In  a  majority  of   the    states   the   doctrine   is   apiTrovsd. 


lULII,        EQUITY      J  U  R   I    S  ?  R   U  D  E  IT   C  E.    SR.  91 

In   order  to   clain    the      estoppel  the   party  to  Virhom 
the   representation   is  ma.de  must  "be  ignorant    of    the    facts,    not 
only  Y/hen    the    representation   is   mpcle,    hut   also  v;hen  he   acts   uvon 
it.        If   he  knows    the  facts,    or  was   so   situated   tiiat  he    oiiglit 
to  have   known  them,    then  no   estopxiel  v/ill   arise, 

106  U.S.    447 
51  Wis.    232 
As   a  general  proposition  a  party   is   entitled  unc'er 
ordinary/    circui:i stances   to    claim   the   estoppel  is   not    entitled 
to    cl&.im  the    estoppel   if  he    is    so    situate   that   he  might  have 
known    the  facts.  Ordinarily  where   the   circumstances    are 

such  as   naturally  would   invite    inquir3'",    the  party  to  whom  the 
representation   is  mi-.Ce    is  "bound  to   know  the    facts.      But    there 
are    cases  v;here    this   rule  v;ill   not   "be   applied.      The   represent- 
ation may  "be   of   such  a  natuj-e   as  to   thjrow  the  party   off  his 
guard  and  keep   him  from    seeking   information  where   he  v/culd 
otherwise      naturally   look  for    it.      Under   such   circumstances   i^e 
v/ould   not   "be  "bound  to  raake    inqioiry.        And   so   it   has  "been    said 
that   where   the   representation  has  heen  so  positively  mi-.C.e 
that   it  would   induce   a.n  ordinary  "business  man  to    rely  upon   it 
he  may   '^laim  the  "benefit    of   the    estoppel   even   if   he  mi;_-ht   have 
ascertained  the  t  i-uth  by  making   inquiry.        As   has   "been    said 
this  proposition  rests  upon  the  mistaken  assuption  that   facts 
represented  hy   one  p-rty  puts   the   other  upon   inquiry  as   to 
t?ieir  truth.      If  a   contracting  party  has  a   reas  aiahle    right 
to    rely  upon  tine   express    statement    of  an  existing   fact,    the 
truth  of  v;hiich   is   knomi  to   the   opposite  party,    and   represented 
to  him  as   a  "basis    of  a  mu^.ual  agreement,    there    is   no    o"bligation 
to   investigate   tls  stateme;it,    to    the   truth  of  v/luch  the  party 
has   deliberately  pledged  his   faith. 

DICTATION 

The  party  to  v.-hjom  the   representation   is    addressed 
cannot    claim  an   estoppel   ordinarily  .     if  he    \'sas   in  t-    situi.tion 
to  know  the  facts.      However,    if    the    representation   is  m^de   in 
such  a  7/ay  as    to    throv/  the   ordinary  man  off  his   guard  and  to 
lead  him  to   act   T^ithout    inquiry,    the  party  to  v/liom   it    is  made 
may  claim   the   "benefit    of    tlxe  est0;"ipel. 

31  I'lich.  36 

32  IT.Y.  275 
Pomeroy,  para.  810 
Bigelow,  ps.  626-8, 

oOo 

Jan.  11th,  1903. 


m 


ms* 


:caii.      E  Q,  u  I  T  Y    J  u  r<  I  s  p  R  u  d  ji;  n  c  e.  sr.         92. 

LECTURE  Kail. 
oOo 

15.  is  of  considerable   importance   for  us   to   determine   as 
■^ft  ijis   intention  wit2a  which  a  representation  is  made    or  an   act 
indulged   in  ,  out    of  v;h.ich   it    is   clal'ried  an  estoppel  has   arisen. 
It    is   necessary   tjiat   the   party  making  the    iiepresentation   should 
do   so   with  the    intention   of    inducing  action  on  the  part    of 
the   one    to  whom  the    representation   is  mcide .      Is    it   necessary 
for  you   in  making   out   j'our  prima   f  t;c  ie    case    of    estoppel  to   sixov/ 
that  the    representation  has  "beenmcde    directly  to   tlie  person 
claiming  the   henei'it    of   tlie    estoppel  and  with  tie  intention  of 
inducing  him  to  act.      In   the  great  majority   of   cases  you  will 
find   the   coui-ts  holding  tliat   the   representation  need  not   neces- 
sarily he  made   directly  to  the   party  who   taiass  advantage   of   it. 
It   need  not   he  made  v/ith  the    intention  of   inducing    action  on 
the   part    of  a^y  particulr'.r  person,    but  that    it    is   sufficient 
if    the  representation  is    such  as  v;ould  naturMly  induce  a  man 
to   act  provided  he  finds   himself   interested  in  the   subject 
matter   of   the   representation. 

There   is   one    class   of    cases  where    the   representation,    if 
it    is   to   "be   t}ie   basis    of   an  equitable  estoppel,    must    have  been 
made   directly  to  the  party  who   is    claiming  ■Qa  e  benefit    of  the 
estoppel,    and  must  have  been  made  with  the    intention   of   induc- 
ing that   party   to   act.     "Iierever    the  representation  has   to   do 
v/ith  the   the    ti-Q-a-to    realty  and   it    is   sought  by  virtue   of   the 
eqi'dtable  e  stoppel  to   c'^ange    that  title,    ttienwe   hare   a   case 
v;here   the    representation  must   be   m£..''e  with  the    intention  to 
induce   tlmt  party   to   act   to  wlxim  it    is  made.      Ve  might   have 
an    equitable  estoppel   in   regard    to    realty  where    it    v.'ould  not 
be   necessary  for   the  party  to    shov;  this    intention  to  m.islead 
the   particular  party    cla  ining  the  benefit   of  the    estoppel,   "'"'e 
may  Imve  a   case   of    estq)pel   in  regard    to   realty  where   the  effect 
would  not   be   to  transfer  the    tit  le , -th.ere  may  be   in    equitable 
estoppel   as  t  0  the   possession  and    as    to   other  riglits    in    realty, 
etc.,    where    the  principle    I  have    suggested  would  not   apply. 

DICTATION 

In    the    great   r.iajority   of   cases    it    is   not    necessary   to  show 
that   tlie    representation  has  been  made  with  the    intention  t}:at 
it    should  be   acted  upon  by  any  particulai"  party.      If   the   rep- 
resentations   are    such  and   are  rn/:.de   under   such  c  i^-cui.istancos 
that   axx,'  person  interested   in  t  he    subject   matter  woul.:   be 
mislead  by  them  thay  will  be   sufficient   to   form  the   basis   of 
an  estoppel. 

51  N.H.    287 

30  N.Y.    206 

Poraeroy,    para.    811 
But   this    is  not    the    case    viiere    the    representations  are 
made   for   the  nur-oose   of   inducing  action  in  regard  to   the    title 


TJilll.        EQUITY     J   U  R  I    G   P  R  U  r  E  N   C   I^      SR .        93. 

to  realty.  In  such  cases  the  ."^urpose  of  the  representation 
must  be  sliown  r.nu  as  a  rule  no  one  can  take  advemtage  of  it 
excepting  tlie  party  to  vh  cm  it    is   iiade . 

93   U.S.    326 


The   next   requisite    to    the  estoppel   is   that   the   conduct 
must  have  "been  relied  upon  "by  tlie   :  r  rty   clairainc  the   "benefit 
of    the  estonpel.      The    representation  must   hr  ve    iiiruced  action 
and    it   must    appear  that   the  party  relying  upon   it   v/ould    siiffer 
loss   if   the    estoppel  v/ere  not    allo7;ed. 

55  il.Y.    456 

57   ms.    534 

P omer  cr,'- ,   ]-,c„ra .    8 12 

Bi^elovf  on  Estoppels,    parses   636   lvA   on. 
Inasmuch  as   eq  vita  hie   estoppel   is   governed  "by   equitable 
principles,    it    follows   tlie.t    the   party  claiming  the  benfit   of 
the   estoppel  must   be  free    from   fraud  in  tte   transaction  and 
tlia.t  he  must   have   acted   in  ^'ood  faith  and  v/ith  reasonable   dili- 
gence.        If   the   party  v;ho  rncde    the  represeiitat  ion  lias  l^een 
led   into   tlois    representation  by  the   fraudulent  action   of   the 
othBi    party  tl^n   is   not   estopped  from  correcting  himself  v;;i3n 
the    opportunity  offers. 

The   estoppel   operates   not    only  betv/een  the  imraedicte 
pc-rties    the'^eto,    but  also  betvjr3en  their  privies,    v;hether  ''oy 
blood,    by   estate    or  by   contract. 

These   are   tjie    jijeneral  principles   of   tiie   equitable   doctrine 
of    estoppel  by   conduct,    but   before   leaving  the    svibjsct    tl-ere 
are    one   or  two    collateral  matters    tliat   do  not   readily   group 
theriselves   under   any  particular  heads    tlxa,t   I  hare    suggested, 
thst    should   receive   a  moments   attention. 

(Ij      P.quita>le  estoppel  as    applied  to  married  v/omen. 
There  was    some    conflict    of  auf'-ority  upon  tliis   question,    but 
the   modern    ten.-'ency  of  autliority   is    in   one  direction.      It 
has  been   laid   dov:n  by   s  crie    courts   tint  t]Te   doctrine   of   eqiiitable 
estor^pel  has   no   ap    licaticn  to  married  v/onen.      It   ^vas    ar. :ued 
as  ma'ried  v/omen  could  not   bind  thcy.iselves  by  contract   neither 
could  they  bind   th-nselves   by  their   conduct.        It    v;ould  be 
erroneous' to  allow  her   to    accom.plish  by  c  ojiduct   xfhvt    shs   could 
not    accomplish  by   the  settled   rtdes    of   lav/,      To   long   as   the 
cortmon    lav;  disability   continued   tMs   conclusion  v.-as   u_ndoubtedl:'- 
the    cor'-ect    one,    but   upon  the    removal   of   this   disability  by 
statutes,    tjiere   :-ias  been  a  cliange   of    attitude   of  the  o.  ut'orities 
and   I   think  that   I    can  safely    say   that     v/henevcr  thestatiites 
are    such  as    to   enable     married  v-iomen   to  contract    to   t]ie    sa::ie 
extent    as  a  feme   sole,    she   iivill  be   bound  generally  by  the 
doctrine   of   equitable    estoppel.      The  e  xtent   to  which  she    is 
bound  '.dll    depend  upon  the   extent  to  v/'iich   tlie   libert;-  of   con- 
tracting has  been   accorded  to  her. 


XXIII.  E   q   U  I    T   Y      J  U  R   I    S  P  R  U  D  E  IT  C  E .    SR.  94. 

I    tiiink   tliat   it  may  'be    said,    that   v/itliout    rejard  to 
le-:,islat  ion,    the   decided  \7eijht    of   .  authority   is   tliat 

estoppel  v/ill  "be  suf^tained  a^.  inst  a  ine.r'"iec'  woman  in  case  of 
fraud,  even  tliouc^.  there  has  "been  no  very  great  chan;^"e  of  the 
contractual   liabilit;''   of  married  v/crien. 

:ic::atio:j 
iliciejuital  aid  coliateral  matters: 

(Ij    At    cQii'on   Ic.vi  m.arried  v;omen  v/ere   not    "oouiid  "by 
equitatle    estoppel.      This   vras   due    to  t^ie   contractual  dis- 
ability  under    vhich  they   labored.      J^ut   v;h£re   this   disability 
has   "been  removed  by    statute,    it    is    "^rery    ^nerall:'  held  that 
the    doctrine    of    equitable    esto^pele  ap'^lies   to  married  \,^omen. 
And   it    is   held,    ataost   v/it'^out    exception,    even   though   there 
h£:S  been   little    statutory   change,    that    the  inarried   v;onan  v/ill 
b§  bound   by  the    doctrine   of   esto -pel   if   she   has  been  ^u'.lty 
of      raud    in    connection  \7ith  tte    transaction. 

2   Grey(    ?'assj    156 

117   I!ass.    244 

53   ?^Y.    93 

106  I'.Y.    74 

21  Pa.    St.    456 

35   ^"ich.    148 

46  '"is.    577 

Pomeroy  para.    814 


(2  J      ESTOPPEL  AS   A'^PLIEI;  :" 0  lYlYCrTS:        It    is    the   general 
rule   that   an   infant   cannot    be  bound  by   the   (  octrine  oi    equitable 
estop'iel. 

10  IT.Y.    184 

52  IT.Y.    249 
This   rule,    liowever,    according'  to  sane  tu.    orities, 
v/l-Bre   the   infr.nt   lias  been  guilty   of   fraud  and  vhere   fraud   is 
the   basis    of    '.he      ction,    has   not   been   recoiiized. 

Pomeroy  para.    815 

Bi£;elo\Y,    p   492 

Evrell's   Lef.ding  Gases    on   Iiifaiicy,    page   226 


I    sha,ll   devote   tlie    rest    of  my   time   to  the   equitable    :-enedy, 
of 

I  i\  J  u  ::  c  T  I  0  i:  . 

This  matter   of    injunction   is   a  matter   of   grer.t    deal   of 
im"-'Ortance,    particularly     t    the   ;'')resent    time.      The    injunction 
is  now  more    frequently  used   tloan    in  the    early  history   of   the 
court,   alt}iough  the  po\/er  of  the    court   of    equaity  to   reach 
out  by  means    of   the   injunction  and  restrain  the    commission  of 


}C;:iII.  EQUITY      J  U  H   I    3  ?   R  U  D  F.  1;    C  E.      SP. ,        95. 

of  a   ivi-ong   or    to    restrain   t:ie   violation   of  c.  contract   has   been 
reco-nizpd    'Vci  its   errliest   histo'*y.  It   v.t.s   f^e   inj'.V-iction 

that    stirred  up   op;.)Osition  to    the    court    of    eqiiity  curing   its 
fonnative   period,    particularly   on  account    of   the  practice    of 
the    equity  judges   in   issuing  injunctions   to   restrain  proceed- 
in{-s   on  tlie    Ir.v;  side    of  the   court   '':here   in  the   jud4;mentoj:' 
tlBse   judges   the  c  ases    sliould  be    settled  upon   equitable   and 
not    lecal  principles.        I   t  lij.nk  that  the    jurisdiction   of  the 
court    of    equity  h^-s  been   criticized  and  attacked  more    frequent- 
ly during  its   entire  hisotyr  on  recount   of   its  use    of  t!ie    in- 
junction than  for   aiiy  other    reason.      But    cfter  ?-■    time    it 
came   to  be   recocnized.    even  by  tlie    c  crxion   lav/  judges,    that 
equity  had  aut'iority   to   do  this,      ■'-naerever   the  defense   to 
an     ction   is    equitable   in   its  ncture   and    cannot   be   fully 
developed   on  t  ra    .  lav/-    sice   of  the   court  by   the  ap   lic- 

ation   of   common   lav/  principles,    t]ie  practice    is   to  go   on  to 
the    equity  side   of  the    court   ?nd    f i^e   a  bill  asking  -or  an 
injunction  to    restrain  the  proceedings   at    lav/  and  th?,t  the 
v/hole   ;natter  may  be    transferred   to   the    equity   court.      Tkr.t    is 
not   nececsar^'   in  code    states   v/here    equitable    defense  may  be 
inte.'posedo 

The    injunction   can   only  be    issued  by  a  court   having   equity 
pov;ers.      There    is   nothing   like   the    remedy  by  injunction  on  tiie 
lav7   side    of  the   court.  An   injunction   is   a    restraining  v/rit 

issued  by  an    equity    court   that,    by   its    tenns,    forbids   the 
defendant,    his    o., ents   and  those    tjiat    represent  him,    from 
doing  a   certrin  thing   or   things    specified   in  the  writ.      The 
injunction  may  be   defined   in  a    ,_;eneral  vay  as  a   judicial 
process    operctin..,    in  personam,    and   issuing  out    of  £■    court    of 
equity,    or  a   court   having  equity  powers,    tlnat    requires   the 
person  to  whom   it    is   dii^ected  to   refrain   from  the    commission 
or  continuance    of   sane  particular    act. 

The  ordin   ry   injunction   is   prohibitive    in   its    nature. 
Its    object    is    to    restrain  a  party   from  committing  a  v/ornf. 
3"^t    there    is    another  kinc'    of    injunction  that    is   called  a  ^ixn- 
datory   Inj-un ction.      It    is   in  effect   a   corrjnand  to   t'le   defeudcait 
to    do    some   particular    thing   specified   in  the    injunction.      It 
has    32v./ays    seemed  to   ]:e   that    this    injunction  was   \'rongly  named. 
The    -v-Bry  meaning    of    the   terra    '  injiuaction'    indicates      a   restrain- 
ing pro  cess . 

The    restraining   or  prohibitory   injunction  may  be    issued  is 
an    interlocutor;)^  v;rit    for    the  purpose    of   tying  up   the   property 
pending    litigation   so   tixit   the  parties  may  remain   in  statu 
quo.      It    is   not    then   in   the    form  of   r-    decree,    but    in   the    form 
of  a  v/rit    c  onmandin:^  the    defendant   to  keep   hands   off   until    tlie 
rights   of    the  p.  rties  have  been   decided.      The    injiuiction  in 
this   form  is    issued   vathout   ary   in-estigation   inxo   the  merits 
of   the   case.      It    is   based  upon   the    statement    of    the   case    ac 
set   forth  in   c  anplaineint '  s  bill    of    conplaint.      It    is    iscued 
upon  the   prima   f^cie    case   rude    out    by  the   bill. 


7XIII,  7.   0   TJ   I   T  Y      J  i;  R   I    3   P   R  U  I^  E  N  C   T^.      SR.       96. 

riCTA:-ioiT 

IlTJUlTC'x^ION: 

The    injunction   is    a  judicial  process   that    o-.e.'ates 
in  personarr.  anc    requires      t.-ic  person  to   whom  it    is   directed 
to    refrain  from  the    commission   or  continuance   of    some   particu- 
lar act . 

The  ordinary   injunction   is  preventative    or  prohibitive 
in   c^Tarr.cter,    and  may  he    issued   either   in  the    form  of  an   in- 
terlocutory writ    or   in   the  form  of  a  final  decree. 

"^'B  hcive    also   the  mandatory   injunction  which  commands    or 
directs   a  defendr..nt    to   do    some  particular    thing.      This    in- 
junction  only   isques    in   the    form  of   a  final   decree. 

High  on  Injunction,    para,    — 2 
Bispham  principles,    para     400 
20  IT.  J.    :.lq.    379  (    Case   Book   7250^ 
37  l^.J.   j^q.    6    'Case   Book  729' 

A  "bill   filed  for   an   injunction  as    a   final    remdy   is  knovm 
as   an    '  Il-TJUlTCTIOiT  BILL'.      And    the    decree    is  "based  upon   the 
testiffin^iy  that    is    taken   in   the  case,      v/here    the    injunction   is 
interlocutory   it    is   "'oased  upon   the    statement    of    the    case  made 
in   the   "bill. 

The    court    of    equity  never   isp.ues   an  injunction   ex- 
cept   upon   tile      sworn  stt-.tements    of    saneone    vh.o  knows    the    facts. 
Y.liere    the  injunction   is    to   he    interlocutory  the   sworn  stetement 
is    found   ordinarily   in  tlie   till   of    complaint.        If    tlie    ohject 
of    tlie    suit    is   for   a    f  iial    injunction,    then   the   hill  need  not 
he   sworn    to    for    tie  reason   that    injixnction   in  tha,t   case   is 
a   final    cscree   hased  upon    the   testimony   tlir.t  has  heen  taken   in 
tl-fi  case.        If    you  apply   for  an   interlocutory    injunction  you 
must   first    see   t^iat    the   hill  is    scrorn  to   and  second  you  must 
have    attached  to    the   hill  an   affidavit    or   affidavits   from  part- 
ies  who   knov/  the    facts   that    you  hc-ve    set   up   in  tlTe    bill   in 
or-.,  er   to    strengthen   the    case    that    you  h£:ve  made    in   the   hill. 
In   soiie  states    it    is   utterly   impossible   and    contrary  to  prr.ct- 
ice   for   a   court   to   issue   tJie    injunction   in  an   interlocutory 
proceedinoS   unless  the  affidavits    of    tku   other  ;f.     '""-'-  parties 
than  t>.e    complainr.nt   have   been  attached    to  the   bill   of    complain' 
The    oh-jiect    of  these    affidavits    is    to    strengtlien  the   jud/.ment 
of    'iiie    c  ourt . 


•  oOo 

Jan,    12th,    1905, 


7X1Y,  EQUITY     J  U  K   I    S  P   R  U  IJ  7.  IT  C   ]],    SR.      97 

IxRIGTURE  XXI '^ 
"     0 . 

As   I    said   in    '".he   last    lecture,    no   injunction,    either 
interlocutor:'   or   final,    can  oe   issued  excepting  upon  a   sworn 
statement.      In  case    of   an  inter  locutor;/'  injujiction,    the   st/orn 
statement    is   in   t'at  "bill  :7ith    af .""id.- Tits  attached  thereto 
sup'ortLng  t^ie  ■bill,(    in   sone   cases   the    stat-^rnent   may  te   in 
the    form  of    affidavits  c.lone)*,      In    case    of   tiie    final    inj-a:ict- 
ion  sv.orn   stater^ent    is   found   in  the   testimony   of  the  witnesses 
in  the    caseo 

TV.ese    f-ff idt- vits   are  mac'e   "before   the    cuit    is   properly 
or  fonnrlly  "brought   "because   as   a  rule    the    interlocutor;-   in- 
jimction   is   allov:ed  "before    the    :  uit    is  formally  hei^un.      That 
Dein:,-  the   case    the    af fid- "its  need  not  "be   entitled   in  the   case. 
The  "bill   is  no':    in  most   cases   entitled   in  the   case.      The    case 
made  "by   t\':e  "bill   is   the  case   upon  v/liich  the  court   pr.sses.      It 
is   an    ex  parte   proceedin^:   in  a    g'eat  many   cases.      /.  party  may 
get   an  interlocutory  injuncoion   ••.'it:iout   notice    to   t;s3    otlier 
party  if  h.e    car.  convince   the  court   t:iat  notice    to   t/.e    ot--ier 
party  may  defeat   the  very  o'bject   for   \,-hich  he    seeks   the   in- 
junctiono      The  c  oi^rt    in   grant  Li^:   the  preliminary  injimction 
does  not   pass  upon    the  in3rits    of   the    case.      The    court    simply 
says,    u]:on   the  priuia  facie   case    as   presented  to  me  "by    ohe    .."11 
of    complaint    it   appears    tliat  the    c  a;ip la l:ia..nt    is   entii-led  to 
this     xtraordinrry  v.rit  o 

T:i8    injunction  never   issueb    excepting  upon   the   oix'er   of 
the   court. 

You  must    alv/ays    incorporate    in  your  "bill  a  prayer   for  an 
injiiiiction.     Your  prayer    should  "be    so  comprehensive    that  the 
party  v.ho   fills   out   the  writ   need   only   refer  to  t^-Le  prayer  to 
fill   out    ihe   v.rit. 

Your  pra;>^er   for  an  interlocxitory   injunction  may  "be    in- 
corporated in  your  "bill    even   though  you  do  not   intend  to 
appli'-    x"or  an  interlocutory  injunction  in   the  "beginning   of   the 
suite      It    is  v:el].    to   insert    it    in  ti:e  "bill  so  that    if  need  "be 
you  may  procure   tlie    injunction  v.'it:'aou.t    delay. 

U.So   courts   an   i:ij;incticn  v/ill  not    issue   without 
.e    ot?-er  p^rt'.        In  order   tliat   trje   federal  court 
the    complainant  v.here  notice   would    defeat   the 
v/hich  ""^e    seeks   to    r^et   "by    die    interlocutory  inj^ju-ict- 
pro'.aded  for  a;<i     tempore  ry  restrainin.:   order  of 
the 'court,    during   thje  pendency   of   the   application   for    the   wrj 

Ordi.narily  tre    injunction   is   issued  "by  the   judge,    "but 
there  are    other  officers  v.'ith  authority  to   issue   t^ne   v.rit  .An 
Injunction  ^^aster  -my  issue    fhe   v/rit.      The  ::<  ster   in  C>:ancery 
is   very  frequently  an  Injunction  "aster  v.lth  authroity  to 
issue    trie    v.rit.      In  ::ichigan,    Vce    Circuit    Court   Cor;  lisr  ioner 
has  authority  to    issue   the    v.rit  . 


In 

the 

notice  : 

0  t 

may  : 

^rot 

ect 

very 

ohj 

ect 

ion, 

it 

}ias 

J.  o  • 


XXIV.  EQUITY      J   U  R   I    S  P   R  U  D  E   N   C  E.    SR.      98. 

The    court    caiinot    siitsequently  be  held,    to  he  hoimd  as   to 
the  merits   of   tlie   controversy  by   its    decision  as   t  o   the   inter- 
locutory  injunction. 

In  the  majority  of   cases   v.here   an  interlocutory   injiinct- 
ion  1ms  been  granted,    the  defendant    in  Gon-^/enient   season  moves 
to  have    the    injiinction  dissol-'^redo      Kere   the   real  test    -s   to 
the  propriety   of   the   issuing,-   of    the   injunction  is  mrdeo      In 
order  to  make    a  notion  for  a  dissolution   of    the    injunction  the 
defendant  mu^^t   ha^-e    a  basis   for   his   motion   and   that  basis 
must  be    in  his   sv/orn  answers 

The    injunction   cannot      issue  before   the   issuing   of  the 
subpoenao      Put    the    injunction  may  be    served  at   the    same   time, 
and   ordinarily   they    ra^e    served   at    tlTe    same   tineo 

The    object    of   the  preliminary    injunction   is   to  preserve 
the  property  in  stc^tu   quo  until   t  lie   merits   of   the    case   can  be 
determined  upon. 

Both  the    interlocutory   injiorction  and  the  final   injunction 
mn.y  be   sought    in   tiie   same    s-oit   or  p  roceedin(j"s, 

DICTATIOIT 

A  fundamental  principle   un^. erlying  all   injunction   cases 
is  this;      The    injur.ction  will   never  be   granted  where   the 
REITEY  AT   LA^.'   IS   PULL  A?:IL  ADEQUATE,    but    it   will   always   be 
granted   if   the   case    is  properly  made  v.'here   the    legal    remedy 
Vv'ill   not  be  adeqii£iteo 

Tats  on   V.    Sutherland  J    5  TJall   74;   l^ew   111.    Cases    752 

In  regard  to   the   dissolution  of  an   injunction,    the   rule 
is  that   if  the   answer  that   defendant    interposes   as   a  basis 
for  his   motion  to  dissolve  meets   fully  and  completely  the 
equities    in  the  bill   and  denies    all   these    equities,    it    is   the 
duty  of   the    court   to   dissol'v-Q    the    injunction. 


llhere  the   subject  matter   of   the    controversy  is    equitable 
an  injunction  will   always   issue   for  its  protection.      The   quest- 
ion as   to   the   adequacy   or   in; dequacy  of  the   legal   remedy  cannot 
arise  ^ 

Pomeroy,  Volo  Ij  340-5 

The    injunction   is   very    freqiJently  used   in   connection 
with  other  equitable    remedies »      indeed  the   equitable 
remedies  would   in  many  cases  practically  without    effect   j.^    not 
accompanied  by    tl:xe    remedy  of   injunction.      The    injunction  in 
such   cases   is' used  to   keep   the  property  in    statu  quo,   pending 
the    equitable    invest  igat  ion o 

UJ  CJ'STAIl:!  CAS?1S  T3IE   INJUITGTIOIJ  may  be  used  to   restrain 
the   violation   of    contractso        This   jurisdiction,    hov;ever,    is 
extraordinary  and   v.lll  not   be    recognised  excepting   in    case 
of    inadequacy    of  tlie   legal  remedy,    and   in  order    to  prevent   a 
mu4.tiplicity  of   suitso 


x}:iv.  EQUITY    J  u  :.;  ISP  ]■■:  u  r  E  N  c  n  .  s:;.     99, 

The  natural  Jrisdiction   over  contracts   is   the   jurisdiction 
of  the    law  courts.      Tlie  natural  jud/^juent    in   re^iwd   to   contract 
is   the  judgrient   for  damages.    In  order  that    r^n  injunction  niay 
issue   to  prevent  t  lie   violation   of  a   contrict,    the    contrc.ct  must 
possess  all  t:i  e   elements  necessary   to  enahle    it   to  be    speci- 
fically   enf creeds    such  as   consideration,    certain tj^,    mutuality, 
freedom   f'-on  oppression,    freedom   fron  all   inequitable   quali- 
ties. 

Equity   is    said   to   abhor  a  multiplicity   of   suits,    and 
equity  vd.ll   take  jurisdiction  where    the    sittuition  of   the 
parties    is    such  that    in  the   absence    of   that  jurisdiction  suit 
after   svdt  must  be  broug}it   in  order  to  give   adequate    i'elief, 

TDICTATIOIT 

In  order  that  an  injunction  may  be  used  for   this   purpose, 
the    contract   must  be  certain  and  not    in  ary  v/ay  be    opriresive, 
and  must,    in  a  generi-.l  ".'.•ay,    possess   all   the    essentials    that 
are  ne^cessary  for   a   contract    to  possess   in  order    to  be  speci- 
fically  enforced. 

If    tlic    contr:  ct   possesses  these   characteristics,    then 
it    is   as  much  a  m£. tter   of  course   for  the   court   to   enforce 
it    indirectly  by  i.iec-.ns   of  the    injunction  if   it    is   negative    in 
its    tenus   as    it    is  for   it    to   enforce    it  by  means    of   th^   ac    ion 
of   sToecific  perfonnance    if    it    is  affirmative   in  its   ■*" 


■  a  v*mc 


The   injunction  is   very  frequently  used  to  restrain  the 
violation   of   restrictive    covenants    in    leases,    deeds   and 
agreements  by  •  liich  an  equitable    servitude    in  regard  to  tlie 
land  has  been  created.      The   intervention   of  equity    is   justified 
not    only  upon    tlie    gi'ound  of  difTiculty   in   estimating  dt^mages 
at    lav;,    but   e^lso  an   injunction   is   necessary  to  prevent  a 
multiplicity   of    suits  at    lav/. 

In  connect  ion  v/ith  the  abo^v^    dictation  I    '.111    cite 

the  cases   of 

High   on  Injunctions,    II,   para,    IIO0-8 
48   Ohio    3t,    324(Case   Book   735; 
The  lease   may   contain  negative    stipulations   to   the    effect 
that    the    land  or  building   covered  by   the  lease    sl'iall  not   be 
used      or    certain  purposes;    or  the   stipulation  may  be   negative 
in  effect    thougla  not    in  form,    for  exajnple,    tlmt    trie   premises 
are    t  o  be   used  for  a   certain   r^urpose,    the    inference   being 
that    tYsy    are   not    to  be   used    for   ar^,'-  other  purpose.      In  a 
Kansas   case   a  building  v/as    rented    for  hotel  purposes.      The 
lesse    sublet   a  part    of  the  hotel  office   for  a    reel    estate 
office.      An   injunction  was   granted   to   restrain    the  violr-.ion 
of  the    contract, 

-oOooOo 

Jan.    17th,    19 oa. 


0  U  I    "  y     .T  IT  ^   I    «?  P   T  TT    ::  """^  TJ  0  -R,    n'  ,  i'"^^ 

L  i"^  C   T   U  R  E 


oOo 

I:    I    C    T    ;    T    I    0     ■ 

T .■'    injunction  is  iVoquently  used  to   restr   in    .'\o   -"iol  t- 
ion   of   restrictive   covenrnts   in    Ig;  ses,    usu   lly  covenants      z.  to 
the  use   of   the  p  -o^^erty.      '°.:  sis   of  jurisaiction   in;  ^equacy  of 
the    lejal   renedy   an.,    to  prevent    :.  nultiplicity  of   suits.   In  order 
thi-t    t'le  jurisuiction  nfty  attr.ch   it   is  not   necess.- O'   thct    the 
"  iolction   of   the   covenant     mount    to   £;  nuis?nce, 

'ii;-h   on   Injunctions,    "olll,    p-r^;,   1142-9 
4   ^anf.    r-vr\c,    Ci.Y.)    567 
39  Tins,  s    193(  luse  Eook   740) 


■^riicipal  also       plies   in  fcvor  oi    lessee   <..  s    -j;.inst 
les    or, 

23      ,.7.   ^q^iity   16 1(    '^tise  Book  738} 


rinil   r   to  tliis  cl'  ?p   oi"    c  e3S   is  th3  jurisciction  in   re- 
oard  to  covenants,    fi^-t    is,    ne:S'    i"e   covenants   in   ^eeds     "^ro- 
'perty   is  very  frequently  sold    inc.    in  ths   deed   of   conveyance   is 
a   sti^  ■'Alcition   in   reg-rd  to   the   v.  -/   in  ^hic.h  t"  e   property   shall 
he   used — usually   in  reg...rd  to  th^    C'-arcCter  of  "b^'ildin   s  that 
s'^,;  11  be   erected  uv'on    .he  pro-perty,    o]i3   cots   of   z'le  buildin^,,    or 
its   architecture,     'CnCer  such  circucncvances  fie  jrnritee   t..hes 
t^ie   pro:v^3rty  bur  en  by  these   covenrnts,    v/iich  are   ct  Ilec   erp-.itai^le 
ecsei.ients,    .i-nc    they  may  be   enforced,    anu  usxiall;'  en   only  be   en- 
forced by   a  court   of  equity  t    rju.^h  the  necium  of   ;n   Injiinction, 
I:    the   grantee   atte..ipti:  to   ciolate   t.^e    covenant  by  bvildin^j   in 
a    di.fferent  nnnner  thvn  thct   stip-..lcted  in   the   co-"en.-;.ts   the 
srantor  '^ity  restrain   the  building  by  injimction,      -ut    the   re.::edy 
is  not   confined  to  the   £,rantor.      Any  oth^r  jrantee     ho   is   lihori^:^ 
'jn'  er   a   simil:  r   restriction  c-n      o   into   equity  rno   preve.it   the 
violation. 

These   are   co   en:nts  th  t    z-un   -..it^i  -he    land  ani.:  bind  every 
subsequent   grantee  pro-  ided  he   takes  v.ith  notice,    ..nd  u,nc.er  ordin- 
ary  circiOT stances  he   -.ould   if   the   coven.' nt    is  contadned   in  the 
deed  because    in  most   jurisdictions   e'."ery   one   is  bound   to  ^<nov,-  the 
f^cts  th;.t   are   st   ted   in   ?  11  of    the  deeds  that    constiiute  the 
c^iain   of   title, 

DICTATION 

The    injunction  may  be   used   to  prevent    the  breach   of 
CO  enants   contained   in  con'.e^a.nces     .here    such  covenants  }u  ve   to 
do   -.Ith  f-e   use    of   t'-^.e   nro   erty.      '"uits   of   this  hind  may  be 
broi'.,:;ht   by   the   jrrr;tor,    an.    -.-'lere    theie    are 

similar  conveyances   ••.■ith  s..milar  restric   ions   cy  hny  grantee 
against    cv     other  yr?  :tee.      "'ovenf.nts   of     his   kinu  impose  u"^on 
f'e   pro- erty  what    is  Irnc  n    .s  cji   oguitaole   ecsenent,      n.    sub- 

sequent  grentee?  •  re  bo-nt    ^he   eb;,', 


f 


^^^^       3^  r  u  I  T  Y    J  u  7"  I  r-  ?  R  u  "^  E  ::  c  i:.  s",  loi 

49  ?c.,    ^to    289 

70  :'oY„    440 

34  IT. Jo    ^^qo    C06 

P  „_ 

Principal  applieB   eqvu  lly 

"Princip£'.l  eip-aies   eqrially  £.s  ag;  inst   ve;idor. 

3  ■Pt.i,;e    354 

4  "Pai,'  e   511 


If  a  party  desires  to  taJce  cdvcntat.e  o  his  ri  ^t  o  "  in- 
junction to  r-rerent  the  violation  o."  a  nec^tice  covenant  sillier 
in   c;    leese   or  a   deed  he  :nust    cCt   promptly, 

"li-h   on   I  i.iunction,    Vol.   II,    par;    1159 


There    is    -no^her  clc.&s   oT   contracts  th.-t    courts   of   equity 
v.ill  roco   nise   a  ic    tci.ke   co  :ni2i-nce      r  anc   enforce   incirectly  "by 
"-eans   of    :}:e    injunction,    na-.el:'  con  .ra- ts  t'lat  have    in  view 

e-pcnal   serviceSo        You  v;ill   fine     sc   tterecl  throuf:''    the   text 
"boo!:s   r  nd    reports  expressions    o        'is    ::.nd:   Thc.t    i-.   co-.\rt    of 
eq-:.ity  will  ;  1"  rr  s   enforce   a   c  cntract   th.'it    is  ne,  :tive    in  fom 
"by  T^'^rns   of   ;n   injunction  p-  ohi'-it  in,,,-   its   violation  -/here   the 
court   would  act    directly  am    orcer   a   decree   for   s   ecific  per- 
for;nce    if  the   contract   were   r'^'im  tive    in  form.      Sometries  you 
fin',    the     "ollo-.in^    strteraent:    that    a  court    of   equity  ".'i'l  never 
ret    in    :'  is  ne   ctive   v'£  y  excepting     hen  f:e   contract  is   of 

a   class  th  t    it    -.ould  enforce   affir:!.  tively  by   ..    decree   for 
soeci_ic   pe^-f  :r:  lancBo  ?''xpressions   of   that   kind  raust   be  t  ■  .'len 

V  i-uh.    some   c:^e   ree   of   ;.  llo-.anceo      •  Ithouirh  t'e      ro:)osition  is  true 
;s    .       -^ner.  1  v  ro' osit ion,    it    is  not    entirely  •■,i:hout   exc-rtions. 
^p  lose   a  nan  maces   a   con   ract     .ith  an  eminent    >.ctor   to   ict    in 
"is  •      theatre   for  l    cert,- in   length  of    .ineo     The      ctor   is 

a.'uro;  ched  "by   a  rival  mjnatjer   and   offered   lar  .er   incucer;.  nt      if 
he      ill  act    in  his  theatre.      Can  the   first   er.i,  loyr  go   into   a 
court    of  equit:;  and  get   a  decree    for   sv^ecific   v.-^rf  on.ia_-ice    of   t-:at 
contract  o      VOo      The   court   v;ill  not   ijraiit   a  aecree   of    tliat  kind 
"becaur-    it    c&nnot   enforce    it  e       "    court    of  eq-it;.    cannot  -ia'::e    an 
actor   act    if  he    does  not   v/tnt    to  act  o      "h.ere   the    o"bject    of   a 
con:.ract    is   to  secure   services   of   t    peculiar  kind,    the  t    is,    per- 
sonal   services   of   a   peculiar  kind,    th?    court    is   i3rfectly  help- 
less   so    far  as   specific   perfor   ance    is  concernedo        Then   the 

uestidn   arisen   can   a  court   of    equity  enforce    .  .   contract 

of    :his  kind  "by  preventing   its  violationc      l-'or   a   lon,^   t  ir.e   the 
courts   took     he   riosltion   thc:t    ".hey     ould  not    enforce    contracts   of 
this   kind   indirectly  "by  means   of    the    injunction  "because   the    con- 
tr;  ct   -.cs   not   one  that    could  "be   enforced  affirmatively  "by   the 
ordinrry  remedy    of    speci    ic  performance^,     Put   after   ?    time   the 


T/:r,  y.   QUIT  Y     J  U  R   I    S  ?  p.  U  D  71  IT  C  E.    SP.  102 

cov.rt   Toe-jan  to    recOirnise   tliat    inji.:3^ice  ni,^J\t    folio-./  Troni  the 
£.')    liCc. tion   of   tMs   rule.        They  tlien  took  the   position  that    if 
t""ie    contract    contained  a  negative    covenant   tliat    'he   court    v/ould 
t'len   enforce    it    incirectly  hy  preventing   its  violation  by   issuing 
a;i   inj\mction.      If   the    actor  agreed  that   he  v/ould  perform  his 
services    for  a   certain  raanager,    and   then   stipulated  that   he 
v/oulc'    not   perfoi-m  them  for   any   one    else,    then    if  he    violated  his 
contract   th3   court   could   issue    an   injunction.      That   position    .as 
first    tal:en   in  En;-;li\nd   in    the    case    of 

Lumley  v.   Wagner,    l.Pe::ex,    7T  5:  G      604, 
which  has  heen  followed   in   this   country.      The    doctrine   v/ithin   the 
last    fifty  years  has  13  6  0  0716   firmly   esta^'.  lished   in  this   country 
to   the    effect    tliat    if   there      ::■;    is   a  negative    stipulation   in 
the    contract   the    court   will  always    indirectly  enforce    it  "by 
issuin.^;   an   injunction,    even  thou.jh   it    were   not    of   a  kind   the.t    tlie 
court    could   enforce   af ::'irr;iatively  through  the    ordinary   remedy 
of   specific  perf  orraance  . 

Later   in  ?:ngland    in   the    case    of 

''onta^iie   y»    ?lockton,    LP:,    13  Eq,    139, 
the    court    v/ent   a    step   farther  ana  held   that   although  there    is  no 
negative    stipulation  in  the    contract,    still,    if  the    co::tract    is 
of   such  a  nature   that    a  negative    stipulation  may  be   presumed   or 
inferred,      t'nen    eqiiity   should   interfere,    even  t'-;.ough   the   contract 
is   not    one   that    could  be   affirmatively   enforced.        The   court 
went    a   step    father  and   said   that   the  negative    stipulation  \7ill 
be    implied   in   the   class    of    cases  mentioned,    namely,    actor's, 
artist's,    T.Iusicic  n' s,    Lecturer's,    etc.    contracts  for  personal 
services. 

The    courts   in  this   country  have  not   gone    so  far  as   that, 
a:id  I   notice    recently  that   the  T]nglish  Courts    seem  inclined  to 
recede   from  that    doctrine. 

The   American  doctrine   as    settled  by  the   conse;:Sus   of 
opinon   is   that    the   court    of    equity   will   interfere    and  enforce 
such  contracts   indirectly  by  means   of   the    inj'onction   only  xtizn 
the    co;itracts   contain  a  negative    stipulation,     .^nd  thoy  will 
restrain    :he    violrtion   of  the    contract   even  -.-here   it    contains   a 
negative    stipulation  unless  the    services  are    of  an  extraordinary 
character,         .^or  exainple   take    the    case    of   Rogers   Locomotive   Qo, 
V,   Rogers,    v/hich  I   -.vill  cite   for  .-our  note  books   in  a  few  minutes, 
'-"ere   a  man  by  name    of  Rogers  T;as  employed  by  the   Rogers  Co,   to 
work  as  a   salesman  for  a   stipulc-.ted  time,      /j'other  company   offered 
the    salesmaii  better   induc-:nents   if  he   would  v.-ork  for   them  hoping 
to   drav.-  trade  by  the    similarity   of    the   employee's  name   and  tJiat 
of  his   fonner  employer.      The  Roger  Co.    v/ent    into   equity  and 
sought    to    restrain  by   injunction  the   violation   of   this   contract. 
The   court    said  that   this  contract    could  not  be    enforced  affir?.:a- 
tively,    and   as   th?    contract    is    for   services   that   the   market  will 


XX\^.  EQUITY     J  TJ  R   I    3  P   R  U  D  E  II   C  E.    SR.  103 

readily  furnish  '.le   cannot    see   that    tlie    remedy  at    law   is  not 
adequate,    and   complete. 

DICTATION 

Courts   frequently   interfere   to    restrain   the  violation   of 
contracts   for  personal   service   Vv'here   the    services   stipulated 
for  are    of  a  peculiar  and  unique   kind,    even  though  the   contract 
would  not   be   aff irLuitively   enforced  through  a   decree   for   specific 
perf  orraance .      In  England  the    injunction  would   issue   at   the   pre- 
sent  time   even  thow.h  the    contract    contain  no  nej^ative    stipulatiaa 
Ln  the   U.S,    the    contract  must    contain  a  negative    stipulation,    or 
at    all  events   it  must  he    so  worded  as   to   imply  a  ne£;avtive    sti;u- 
lat  ion. 

If  the  contract  provides  for  services  of  an  ordinary  kind 
the  court  will  not  interfere  to  restrain  its  violation  hy  an  in- 
ju:iction  even  though  the    - -y  ■     '.i^.       contract    is  negative    in  form, 

58  Corm,   356 (    Case  Boole   620 

1  ]je   Gex,    i.I  cc  G   604(    Case  Book   305) 

L.R.    16   Eq.    139 

16   Fed.      37    (Case  Book   696) 
Courts   of  equity  will  also,    by  injunction,    prevent      a 
person  from  disclosing  trade    secr-ets. 

Thum  Co,   V,   Tlonzynski,    114   -rich,    149 (    Case  Book  746) 
The   court    of    equity  frequently   interfers  by  me£'ns   of   the 
injunction  to   restrain  the   violation   of  contracts  restraining:  the 
exercise    of   a    trade    or  particular  business  for  a  certain  time    and 
within  a  certain  territory. 

58  Pa.    St.    51    (    Case  Book   742) 

34  Ilich,    490 

23   IT. J.   Eq.    389 

32  lid,    561 
In  proper  cases   the    injunction  may  be   used  to   restrain 
the   commission   of   a  tort.      Ordinarily,    hovrever,    the    courts   of 
law  furnish  a  full  and  adequate   relief    in   casas    of   tort,      Tence 
the   test  by   vhich   it    is  determined  whether  the    injunction   shall 
issue    in   case    of   a  threatened   or  existing  tort    is   found   in  the 
adequacy   or   inadequacy   of   the    legal  remedy.      To    injunction  will 
issue   to   restrain  the   com:-.'ission   of  an   oi'dinary  tort,   but    there 
are    some   kinds    of   torts   in   respect   to  which  it   has  been    settled 
that    the    legal  remedy  is   generally   inadequate   and  which  equity 
will   ordinarily   interfere    to  prevent   by   injunction.      The    first 
of   these    is  V^aste. 

Courts   of  equity    at    tjie   present   time   will  very  gener.- ily 
issue   the    injunction  to   restrain   the    commission  of  waste   or  to 
restrain  the    commission  of  threatened  v;aste.     \\^aste   is  any  un- 
lawful use    of  property  that    is   a  perraanent    injur;/  toUie   freehold. 
The    remedy  by   injunction  for  v;aste  has   largely   sviperseded  the 
common   law  action   of  waste   and   also  the    special   action   on   the 
case   for    damages, 

oOo 

Continued    In  npvt    Ipct 


TT'VI .  T:   Q  U   I   T  T     J  U  P.   I    C  ?  ?.  U  D  E  :i  C   E    ,    f^R.  104 

LECTURE]      XXVI 

oOo 

Continued   from  Lect,   X::i7, 

Tefore  the    court    of  equity  v;ill   interfera  hov/evsr  the 
title   of  the  perty  seeking;:  relief  rnist  "be   clear  ajid   the   injury 
a   real   one. 

Ordiiiarily  the  plai:itiff's   title  must  be   a  le.::al   one, 
"but    in  s  cj?.e    instaaices   an  eouita-ole   title    is  held   sufficient, 
?or   example,    whe ;^e  a  person  purchases    land  at   an   execution 
sale   and  {:ets   siinply  a  certificate    therifor.     ^-e  has  a   suflc- 
ient   title   to  Jus:ify  him  in  applying  to   a  court    of   eq^jjity  for 
an  injunction  atjainst    the   coiaraission   of  Tract e  by  t]:e  jud^iient 
dector   in  nossessicn. 


"OCc- 


In   soLie   Jurirdictions  you  vrill  fir.d     that   there   e^rc-ress 
sta.tutoi-y  pro,i.3io;;s   aut;-.oriting  cjid  ccnferin^'  juris- 
diction  in   cases   of  v;aste  u:  on  t':.e    equcty  courts.      The   title 
of  the   coLiplainant   in  cases   of  thi"  l:ind.  nust   not  be   in   serious 
doubt.      If   i':    is  tlie   court  \7ill   eit'ier  rcf-.s©    the    injxmction 
or  hold  the  matter   over  until  the    title   at    lav;  may  be    settled. 

The  vaste  :..ust  be   of   a   substantial  rxi^urc,    not   nerely 
trivial. 

As   I    said   in   the    last    lecture,    as  a  ^^eneral  n.xle,    the 
party  in   order    to  r.iaintain  his  action  nust    show  a   le^al  title 
to   the   property    that   is  being  v;asted.     But   a  lesal    ti-le   is 
not   necessaH''*      An  equitable   title   UTider  certain  circu:;isoai'.ces 
will  be    sufficient    to    sustain  the   action. 

The    injunction  is  ve-.-y  frequently  applied  for   in  connect- 
ion v/ith  the    foreclosure   of  laort^^ages.        /nd   scrn'itines  before 
the  mortgage   is   due   a:id  before   the  nortgacee  lias  a   right    to 
foreclose  an   inJLUiction   is  applied  for  by  the  mortgagee   as 
against    the  r.iortgagcr.      In   sorae    states   the    title   of   the     mort- 
gagee  Iz   legal,    in  others   it    is   equitable,    and  in   others  noth- 
ing but    an  equitable    right,        suppose   you  begin  to  foreclosea 
mortgage,    you  cannot  pei-1'ect   the    foreclosure  until   the    end   of 
a  year,      '.i};e  mortgagor   is    in  possession  and  he    is  entitled  to 
possession  and  to  use   the  property  during   that    time,   but  he 
is  not    entitled  to    inaste    it,      Co   in  forscloring  a  mortgage 
you  may  alv.'ays    ;nclude   a  proyer   for  an  inju-iction  to  restrain 
the  mortgagoi-  from  comiuitting  waste,     /.nd  indeed   it    is  not 
necessary  to   -^  it   until  foreclosure  before   getting  the   in- 
junction.    You  must    show  in  the    first  piece   th^.t   the   security 
is   slender,    and  that    it   v;ill  be   depreciated  and  ycur   client 
liable    to   suffer   loss   if  the  v.'aste    is   allov/ed  to  continue.  And 
you  must    show  that   the  mortgagor  is   irresponsible    so   that   a 
money  judgment   could  not   be   collected. 


■pCVI        2"   q   U   I   T   Y     J   U  R   I    S  P  J:  TI  D  ID  :i  C?:    .      Sr.  105 

/.n   injunction  to  restrain  the  nortgagee  from  conrniting 
waste   is   frequently  issued  where   zhe  liiortjzt.cee   is   in  possess- 
ion  of  the  property  for  the  purpose    of   foreclosing   or   for  any 
other  purpose.        In  many   states   the  mortgagee  has   a  right   to 
take  possession   of  the   property.      In   other  states   the  mortgagee 
CLUTuot    take  possession  until  after  foreclosure  proceedings. 
In  case   he  has  possession,    he   has  no   right   to  commit   waste   and 
an   injunction  will   lie   to   restrain  him,, 

Die TAT I OK 

/,n    injunction  may  issue    in   favor   of  the   purchaser  at 
execution    sale   although  he   has  not   received  his  deed, 

1  De lav/are   Chan,   64 
In  favor   of  mortgagee   to   restrain  vrast    oy  mortgagor,    and 
tills   even   though  the  mortgage   is  not   due.        In  the    latter  case, 
hov/ever,    it  must    appear  thiat   tlie    security  is  slender  and 
scanty  and  the  mortgagor   is   irresponsible. 

High   on  Injunctions,    tjara,   478-63 

35     Vfis,   358 

33  i,ris,    358 

25   IT. J,    ]^q.    87 


Another  tort   that    the   court    of    equity  has  jurisdiction 
to    restrain  hy   injunction   is  the  case    of   a  PIIB."IG  iTUIS/J'GE. 
An   existing   or  threatened  puhlic   nuisance   a  court    of  equity 
has  a  right    to    restrain.        This  may   oe   done   at    the    suit    of 
t]ie   public,    or  lender   certain   circ\unstances   at    the    suit    of   a 
private   person,      sometimes  you  must   do    so    in  the  nsi.ie   of 
some   public   officer,    and  usually   in  the  name   of  the  Attorney 
General   of   the    State,      That    is  the    law  in  Michigan,  /jid   in- 

stead of   a  bill  being  filed,    a  pleading  called  an  Infoination 
is  filed.      It    is   supposed  to  be  beneath  the   dignity   of   the 
state   to   appiy  as   complainant. 

The    information   is  constructed  r.lon ;  the    sanie    lies   as  a 
bill   of  com.plaint    in  equity.      The    only  dif-'erence   is  that   the 
con-nlclnant    is  the    •-overn'- ont    and   is  not    ezi    'orator',    as   the 
torm   is    ordinarily  imderstood   in   equity  r.  leading.      The    complain- 
cnt   does  not    complain  to   t:  e    court,    th-i   complainant    in   this 
case   be  in-:  the  public,    infonns    bhe   court.      Instead   of    saying 
'your  orator'    you   so.y    'your   infori;'ant, 

A  private  person  may  proceed   in  a  court    of   equity  and 
get    an   iiijunction  to   restrain  the   comjnis^ion   or  continuance 
of   a  public   nuisance   v/here   that   public  nuisance   especially 
affects  that   private  persons  property  to  a  greater  degree   th.an 
the   -lublic   .--enerally  has    suffered. 

dictatig:: 

7!quity  will   interfere   to  restrain  by   injunction  an  ex- 
isting  or  threatened  public  nuisance.      This   is  usually  done    in 
the   naiiie   of  the    state,   and   is  done  by  filing  an   information. 


ICCa  EQUITY     J  U  r   I    G  P  R  U  D  ]5  iJ  C   E      SIl.  106 

A  private   p3rson  T.'ho  has  "oee;!   specirlly  cuid  injuriously 
affected  "oy  the  public  nuisance  laay  r^Etrain  the    continiiance 
of   the   nuisance  hy  the   injunction. 

T'oir.Qr oy   vol.  5,  T)ara.  1349 
128  li.Y.  34(  Case  Book  773) 
17  IT. J.  Eq.  75 

]\quity  exercises   a  vei^y   large   and   irriportant   jurisdiction 
in  connection  with  the    issuance    of  the    injunction   restrain 
nrivate   nuisance    or  to  remove  private  nuisances  alread;.' e  xist- 
ing.      On   account    of   the   difficulty  in   extiuating  v/hat   would 
he  just    coi'^-nensation   iudamages   and  to  prevent   a  multaplicity 
of    suits,    equity    at    a  -"rei-j  early  day  exercised  jurisdiction   in 
case    of  private  nuisances.      It    is  very  frequently  used  to 
protect   a  man   ri::ht   to   lateral   support,   particularly   in  cities 
in   connection  witli  hui Icing   iiTpr overrents,     ;^ach  land   ov,Tier  has 
the    rirh-t    to   the   lateral   support    of  his  nci^htor's    land.      If 
the   neif-hhor  threatens  to   take   a\7ay  t/iis    support   hy   improper 
excavations    "he  proper  roiaedy  would   oy  hy   injunction.        The 
ri  :ht   to    lateral   support    only  extends   to  the   sup.;ort    of    tiie 
soil,    not   to   the    s-apport    of   any  "buildings   erected  upon  the    soil, 
Yery  frequently  this    ii.i,-:ht  to    lateral   support   extends  heyond 
the   ri£;ht  to  the    support    of    the    soil.        A  party  may  have  ac- 
quired the    rie;ht   to   the    support    of  huildin  gs  erected  on  the 
soil  "by  a   special  conveyance.     His   easment  may  extend  not    only 
to  the    soil,    but   to  the   buildings.        Or  lie  may  }Tave   acquired 
vn  easr.ent    ':hrou£:h  Ion/   occupation, 

?on;:erly  t}:e    inj^onction  v/as  ver;.'  frequently  used   to  pre- 
vent  a  party  from  erecting  buildings   in   such  a  way  e.s  to   cut 
off  the    light .  ejid  air  from  his  nei.hbor's  premises.     At    the 
present    tine   it    is  not   so   often  usod  for  the    reason  that   in 
this   country  at    the   present   time  v;e   do  not    recojnize   the  Eng- 
lish doctrir.e    that    the   right    to    liglit   and   air  may  be    cu:quired 
by  prescription.      In   some   of   the    str.te,    hov;ever,    the   common 
law  prescriptive   doctrine   prevails  and  the   injunction  is  there 
frequently  user   for    the  purpose    suggested. 

!^ut   courts   '/ery   generally  reco.-.nize   that   a  person   is 
entitled  to  the   air  in   its  normal  condition,    end  he   h^s  a  right 
to   go    into   equity  and  restrrin  any  business   or  manufactuery 
from  pol  uting  the   air  and  mrking  it   unhealthy  for   the  neit;h- 
horhood.      It    is  only"  v.-here   the   neighborhood   in  which   ti:e  busi- 
ness  is    started   is   a   residence   neighborhood  that   equity  will 
thus   restrain  the   carrying   on   of    such  business. 

There   are    some   hinds   of  businesses  tliat   are   recognized 
by  the   courts   as  per   se  nuisance,    as   for  ex:=^iple,    a    slaughter 
house  has  been  held  per   se   a  nuisance,    that    is,    a   sleughiter 
hovise    in  a  residence  neighborhood,    e„:d.  :'ou  may  prohibitthe 
continuance    of   the   slaughter  house   ■■ithout    showing   it    is  a 
nuisance . 

On   t:^.e    other   "and  it   yias  been  held  that   a  livery    stable 
\7ar  not   a  nuisance. 


XXVI.  EQUITY     J  U  R   I    S  ?  :■.  U  E  E   :iCE .      CR.  107 

/.  riparian  OT.-ner  has  a  ricnt  to  the  vr?.ter  as  it  pacses 
his  property  and  the  upper  land  ovmers  may  not  pollute  the 
stream,    aiid  he  may  restrain    suoh  use    oy  injunction. 

It    is   also    impropor  for  the    lower  rirarian   owner  to 
dam  up   the  v;ater  so   as  to  throw  it  hack  irpon  the  property   of 
his  neirhbor  ahove. 

/ji    injimction  also    lies  to    restrain  the    interference    of 
rights  tiiat   >iave    ueen  ricqtiired   in  t?-.e   V7ater  for  manuf r cturinc 
purposes. 

]:iC?ATIOU 

■Rquity  will   issue   the    injunction  to   restrain  the    comj;.iss- 
ion   aj-^d  continuance   of   aprivate  nuisance.      It    does   this    in  order 
to  prevent   a  multiplicity   of   suits   and  hecause    of  the    inade- 
quacy of  the    legal    remedy. 

Used  to  urotect    ri  "hts   to    lateral  supTiort. 

57   Conn.    190 

46  ::o.  161 

To  prevent   tlie   pollution   of  the   air  ty  incnuf fcturies. 

100  "ass.    76 

54  '.Bo    124 

63  :T.Y,    568 

50   Ind.    516 
r-cne  things  prima  facie  nuisances,    for   e::araple,    slaxighter 
houses, 

2  Joiins  Chanc,    162 

67   Iowa  540 
Injiinction  used  to  prevent    interference  v.ith  riparian 
rights, 

2  Johns   G'^arc.    162(    Case  "ook   758) 

40  IT.Y.    191 

137  "ass.    133 

110   ::.Y.    273 
The    inju.nction  is   extensively  used   in  connection  v;ith 
patent   ri,:;ht    litigation.     But   is   only   issued  after   the  vali-dity 
of   the   patent   lias  heen  established  and   afte   the    question  of 
infringement  has  been  acjudicated  upon- 

nigh  on   Injunctions,    ••  ara     934-9 

"Pome'oy,    vol,   3,    1352 


•  oOo 


substr 
trade 
or  "by 

-:atia] 

mark 

regi- 

Inc  of  con- 

ler 

IIaVH      equity      J  TJ  R   I    S  P   R  U  D  E  JT   C  E.    SR.  IC' 

LECTURE     ■.'CKVIL 
oOo 

At   the   close     '  the    last':    lecture    I    v.n,s   discussinc  the 
use   of   the    injunction  in   connection  vfith  patent    litigation, 
I   think  I  had   finished  all   I  had  to    say  upon  the    subject , 
but   these   principles   shaould  be  borne   in  mind,    tliat   an   injunct- 
ion v,'ill  never  be   allowed  by  the   United  States  Courts  to   re- 
strain  the    infringement   of  a  patent  v/here   there   is   an  substant- 
ial  doubt  as   to  the  validity   of   the   patent    or  as  to  the   in- 
fringement.     Those    que3tions  must  be    settled  before  making 
an  ap;-jlicat  ion   for  ti'ie   injunction.  Those   things  may  be 

settled  by  admissions   in   the  pleadings,   but    if    there   is    come 
doubt   as  1 0    the   validity   of   the  patent    or  some   doubt   as  to 
its  infringement,    t>,e   court   will  alvrays  v/ithold  the    injur.ction 
vintil    tliey  have  been    settled   at    law. 

The  rule  as  to  trade  makks  and  copyrights  is 
the  same  as  that  in  regard  to  patent  riglits.  The 
that  has  become  property,  either  by  virtue  of  use, 
stration  may  be  protected  ay  the   injujiction. 

There   is   one   class   of    cases   thct   does  not    fall 
head  that   I  have   suggested,        A  clacG   that    is  bee 
Biderable    importance    in   tliese   days   cf  new  business   ventures, 
I   refer  to    cases   th:.t    arise  linder  trade  names.     A  person  L^uy 
assiome  for  trade   vurposes   a  certain  na;rie--not  a  m2n3  r.^-ich  vviHl 
give  him  a  proy.erty    right    in   it,    not   a  na-me   that  ^-ill  f^ive- him 
a   trade  mark,    still  a  name   th:  t  v/ill  give  him  a  property  in-^ 
terest    in  the   use   of   the  name  that   v,'ill  be  protected  by  an- 
inj unction. 

You  T;ill  find   a  striking  case   illustrative   of   this  cla&s 
of   cases   irt  the   1C9  Calif.    529o     Here    the  plaintiff  had  bu^lt 
up   a  large  business   on  the  Pacific   Coast,    vrith   their  central 
store   in  Sacramento,    viiich  was   designated  as   the    'I'echajiic's 
store'.      It   had  a  peculiar   style   of  architecture      It   had  an 
unique  Tray  of  doing  business   and  attracting  customers  which 
proved   very    successful,    and   so  the   defend:  nt  built   a   store 
and  began  to  do  business   in  the    same  way.     There  was  no   ob- 
jection  to  this  for   it   was    legal  competition,   but   the   defen- 
dants Y/ent   farther   than    this,    they  finally    secured  a  plot    of 
graound  next   to  the  plaintiff's   place   of  business  and     erected 
a  building  thereon   of  the    same   sir;e   and  style   of  archltectr.re . 
And   the   arrangem.ent   of   the    goods   in   the   -..-indows  was  pattorned 
after   those   of   the  complainejit ,    so   that  a  customer  v/ould  not 
kno'j  v;hen  he   was   in  complainant's   or  defendant's    store.     This 
store  was   called  the    'lie chmical.  Store  ' .        /ji  injunction  was 
brought    to   restrain  the  defendant's   in  th.e  use   of    the  term 
'Meclianical  Store',     The    lower  court    issued  the   injunction 
and   required    the   defendant's   to  put   up    statemonts  both  inside 
and   outside   of    their    store   indicating  th^e  proprietorship   of 
thertore.      The   couii:   above    sustained  the    lover  court.     This 
action  v;as  taken  upon  the    theory  that  the    facts  of    the    case 
indicated  a      conspiracy   on  p^.rt    of  the   defendant   to   cheat 


X..VII       EQUITY     J  U  P.   I    S  P   R  U  ])  E  N  C   ]^.    SK.  lO'J 

a.nd  defraud  the  plaintiff   and   improperly   take  a'.vay  his  trade. 

DICTATION 

The    improper   inf rini::ement    of  trade  laarks  v.vd.y  "be   res-trained 
tiy  the    injunctionc 

Pomeroy's  "Equity ,    Vol-    3,    para.    1354 
Property   rights   in  a  trade   nsaie  will  he  protected  hy 
an  injtmction,    particularly  \'7hen  the  name   or  its   equivalent 
is  assumed  for    the  purpose    of   deception,    and  the    case    is 
accompanied  "by  other   inequitable   acts. 

109  Calif.  5:'9ICase  Book  774) 


There    is   another  class   of   cases   in  v^hich   trie    injunction 
has  been  extensively  uped  in    recent   years,      I    refer  to  Lahor 
Cases.        Althougli   t}ie    question  has  come    to  he    larcely  a  polit- 
ical one,    still  there   is   a   legal    sic'e   of   great    importance. 
This   is   c    question  upon  '-hich  ez:tr3!:e   vie'/rs  have  'oe-n  tahen 
"by  some    of   our   courts',    particularly  ly  some   of    the   federal 
courts.     But  there    ai*e   some    conservp/:ive  viev/s  that  are   cus- 
tained  hy   the    vreight    of   a.utliority     The  theory  upon  v:hich  an 
injunction  is   allowed   in   this  class    of   cases   is    that  hy  virti-.e 
of    the    corahination  property  rights   are    invaded   or  property 
rights   are   threatened, --not    that    "vhe    criminal   leM  has  "been 
violated,        Nov/  has   equity  a  right    to    assutue  jurisdiction 
where   the   facts   show  that  there    is   a   simply  comhinction  "by 
the    defendants   for  the  purpose    of  protecting  thair    interests? 
It  may  "be  for   the   pu:-pose    of  preventing  a  cut    in  v/ages   or 
for   the   purpose    of  securing  an  increase    in   v.'ages.      Corahinttions 
of   this  kind  are  perfectly    legitimate.     But   \:l-3re   the  c  oiAbin- 
ation  goes  farther  and   injury  results  to  property   rights   or 
where    it   goes    so  far  as   to    threaten   injury  to  property  rights 
or   injury  to   the   person,    equity  may  restrain  the  procee'ding 
hy   injunction.        In  these    cases   it    often  becomes  a  difficult 
qixestion  to   determine   whether   a  comhin.-tion  has  passed  the 
danger  line.      It    is    objected  that   v/here   a  crime  has  been 
committed  through   this  combination  that    equity  is  usurping 
criminal  jurisdiction  by   issuing   an   injunction  to   restrain   the 
further  continuance   of    the   combination.     But   courts   of  equity 
make   this  dinction:   they   say  tliat    altho  there  may  have  been 
a   crime   committed,    still   there    is  a    civil  jurisdiction  over 
pror.erty    rights  which  have  been  invaded.      If  you  can   show  an 
invasion   of   such  rights,    the   couit   \rill  be  justified   in 
granting    en   in^.unction. 

This  matter   is   quite  well    stated  by   the   court    in  the 
case   of 


:C:VII  EQUITY     J  U  R   I    S  pp.   U  D  E  :i  C  E.    SK. 


ID 


131  Mo.    212(    Case  Book   771J 
The    defendants  have   appeared  hy   their  counsel,   5uad,-"by 
their   demurrer,    filed,    adnit   that   all  the    statements   of  the 
a-Tiended  petition  are  true;      hut   they   take  the  position  that, 
even    if  they   are   doing  the  unla\Tful    act    that    they  a  re    charged 
with  doing,    still  this   court   has  no   right   to   interfere  with 
them  "because    they    say  ■«\3iat    they  are   doing   is   a  erime  hy  the 
state    law  of   this   state,    and  that   for  the  commission   of  a  crime 
the3'-   can  only  "be   tried  "by  a  jury,    in  a  court  having  criminal 
jurisdiction.      It   will  be   o"bserv-ed  that  the    defendants   do  not 
cl?J.m  to  have    the   right  t  o   do    vhat   the   injunction  f  or"bids  them 
from  doing.      Their  learned  couiisel  even  quotes    the  statute 
to    show   that   it    is   a  crime    to  do    so<»     But  he   contends   that   the 
Constitution   of   the  UeS.    and  the   c  oist  itution  of    •Si  e    state   of 
Mo 4   guarantee   them   the   right    to   corxv.it   crime,    with  only  this 
limitation,    to»wit,    that    they  shall  answer  for  the  crime, 
whGn  committed,    in  a  court  of  criminal  jurisdiction 

before   a  jury.      But    if    that  position  be   correct,    then  there   can 
be  no  valid    statute   to  prevent    crime.     But   trJ.s   position 

is  contrary   to   ^   reason.        The    right    of  trail  by  jury   does 
not   arise   until  the   party  is    accused   of  having    already  committed 
the    crime.      If  you   see   a  man    advancing  upon  another  with 
muoerous   demanor   and  v/ith  a  deadly   weapon,    you   arrest  him,- 
disarm  him,    -have  perhaps  prevented  an  act   v/hich  would  haive 
brought   about    a  trial  by  jury,   but   can  you  be    said  to  have   de- 
prived  of  his   constitutional   right    of   trial  by  jury?.       The   train 
of   thought   put    in  motion  by   the   argument    of    the    learned    counsel 
leads  only   to   this  end,    to-wit;    that  the   constitution  gxiarantees 
■too   every   man  the    right   to    commit   criiie    s  o  he  may  enjoy  the   in- 
estimable   right    of    trial  by  juryc 

DICTATION 

The    injunction  may  be   used   in  connection  with   labor  com- 
binations to  prevent   the    invasion   of  private    rights   or   inter«« 
est So      Court,    however,    has  no  jurisdiction  to   issue   the   in- 
junction where   the   act   complained   of    is    chnply  a  criminal   one 
imconnected  with  nroperty. 

147  Mass.    212(    Case  Book   716) 
167  llass,   92    (Case   Booko    770) 

I   come   no\7  to   ace  on  side  rat  ion   of  the   use   of   the   injunct- 
ion   in   connection  v/ith   the    restreint    of   trade    liebls,        Thi-t 
is  where   a  third  persons  injures   another  by  circulatinj   libelous 
statements   concerning   the    conduct    of  his  business. 

According  to    the    recent   EnglisI:  decisions   en  injunction 
may   issue   for  that  purpose o 

But    the    courts,  al:  Jst   rithcut    exception,    in 

this  country,    deny  the  ri:,ht    of   equi.y   in    ^his   connection. 
But   we   have    cases  v/hich  fall  very  neur  to   this   line    in   v,hich 
equity  has   assu-red  jurisdiction,    although  at   first   blush  these 
cases  would   seem  to  be   a  libel  upon  "business,-  This   is  very 

well   illustrated   in  the   Grand  Rapids    case    in  the    92  Kich.    558. 


XXVII  EQUITY     JURISPRUI;SiTC:n:.SR.iii 

EIGTATION 

Equity  will  not  "by  the    injunction   restrain   lieljls  upon 
business  unless   those    liebsl  go   to   th3    extent    of   a  conspiracy. 

p2  Kich.    558(    Case  Eook   744) 

To  prevent    a  single   trespass   e>juity  v;ill  not    interfere 
"by   injunction,    but   v/ill   interfere   -where    the   trespass  ^vill  be 
continuous    in   its  nature,    or  v;here   the    injury  will  be    r:uch 
that    it   cannot   be   compensated   in   damages,    as,    for  exoxiple, 
where    shade   and  ornamental  trees    ar^   cut    dov,Ti, 

39  7;is.    160    ("62 
64  Vto   643    (Case  Soolc   753) 
106   ir.Y.    179'    Cc.se   Eook   755' 
Courts   of   equity  will   restrain  proceedinrjs  at    lav;  by 
injunction  v:herever  the    defendant    in  the    law  ;  roceedings 
must   depend  upon  an  equitable   defense,    and  v/henever  he   is 
entitled   "o    some    one    of    che   remedies   that   are   distinctly 
equitable,    and   also  where  his   defence    is  affinnative   e']id 
equitable    in   its  nfturoo      ^Jhen   the    injunction   issues  the 
whole   proceeding   is  tranferred   to   the   equity    side    of   the   court 

43  Jlich.  309 
37  Ilich.  553 
16   Gao   398 

27  ITcJo   Equity  247 

44  Vto    450 


■oOo- 


Eeb.    1st,    1904, 


EQUITY     J   u  R   IS  PR  U  D  E  IT  C   E.    SR, 
—il     N     T)     E     X    :  — 
oOo 


-A- 

pa:re 
Accident  1 

Pefi'-itii  on   of  1,2 

2 

fU  cry's   defin  It  ion  2 

Adequate   remedy   rt    lav/  16 

Adenption   of    le::acies  74 

Acqv.iesence  91 

Action  to   set    aside   fraud  nust  te    rbouglit   as    soon 

a.s   discovered  36 


3e quest 

-C- 


13 


Conscientious    rirht  2 

Cases   in  v/'iich  equity  will    infer  fraud  27 
Cases    in  v;Mch   equity  v/ill   interf,;re    on   zhe    -.Tound    of 

accident  5 

Check  G 

Cancellation  10,19 

Contracts  39 

Piduciai-y  39 

Insurance   caitracts  39 

Codicil  77 

-D- 

Dower  58 

I)uty   to   disclose  '                                                       37 

of   vendee  37 

of  vendor  39 

Doner  53 

Duress  58 

Devise  58 


Eqiutal'le    ri:;hts    or  grounds  of    relief    in   ecruity                   2 

Election  ^1 

::inds    of  54 

Exj^ress  a:~Ld  54 

Implied  54 


EQUITY     J  U  R   I    S  P  R   U  D  E  IT  C  E.  SR,             11, 

page 

TUquitatile   estoppel  ,78 

Essentials   of,  85 

Must   te    of  material  fact  86 

Must   "be   of  present    or  past   fact  86 

Must   be   certain  87 

Mast   be  taken   in   its  natural  sense  87 

Cannot   be  enlarged  87 

Estoppel  by  words   end  conduct  90 

Fraud    as   an  essential  to  83 

T^quitable   estates  83 


Fiduciary'-  relation  35 

Eraud  23 

Eraud  in  Equity  27" 

Divided  into  •  27 

Actual  and  27 

ConGtructive  29 

Actual  fraud  consists  of  29 

Ealse  representations  29 

Fraudulent  concealment  31 

Palse  representation,  31 

Essential  elements  of  31 

Affirmation  of  fact  31 

Yllth.   intent  to  induce  action  31 

Must  be  untrue  31 

ICnowledge  and  belief  34 

Must  have  been  relied  upon  32 

Must  be  material  31 


-I- 


Injunction 

95 

Definition   of 

96 

Kinds   of 

96 

Interlocutoi"'   and 

96 

Pinal 

96 

"Prohibitive   sjid 

96 

Mandatory 

96 

Injunction  Bill 

96 

Cannot   be    CJ's^ted  \'jiisre   the    relief   at 

la-;;' 

is 

adequate 

98 

May  be   granted  vrhere   t^ie    remedy  at    la' 

;   is 

ina  c  e  quat  e 

May  be  used  to   restrain  the   "iolc  tion 

of 

contracts   under   certain  circutnstar.ces 

lOi 

L   '. 


EQUITY      J  U  R  I    S  P   R  U  E  E  N  C   E.    SR,  111. 

pace 
May  "be   used   to    restrain   the 

coimaission   of  tort  103 

To   restrain  negavtivc    covenants    in   deed  and 

leases  103 

-I- 

Int reduction  1 

Intent    of   parties  10 

Investigation   in  cases    of  fa^se    representation  41 

Inadequacy   of    c  on  sideratien  45 

Insanity  46 

Intoxicrtiion  94 

Incidental  and    collateral  niatters  94 

Tarried  women  94 

Infants  94 

-J- 

Jurisdiction  .  26 

-L- 

Legislative   conduct,    coiitracts   controllin^:,    etc.  44 

LoblJ^'-ing   contracts  44 


Here  pov;er  6 

Mistake  7 

definition   of  8 
Iilay  "be   divided   into 

Mistake    of   ra.ct  9 

Mistake    of  Lav/  9 

As   to   general   law  9 

As   to   Particular    transactions  9 

Mistake    of   ?act  £,15 

Definition   of  16 

Mistake   nust   "be  IS 

In   regr. rd  to   a  jnaterial  fact  16 

Kot   "bro   ,,lit    about   "by  the   ne  ;ligence    of  ]f>arty  16 

Rule    in   s'lowing  mistftke    of    fact  18 

}Io\7  accident,    mistake,    etc.,   may  be    sho'.7n  17 

Remedy    in   case    of  mistake  17,18 

-0- 

Official   conduct  43 

-P- 
Parol  evidence 


EQUITY     J  U  R   I    S  P   R  U  D  in  IT  C  E .    SR.                Iv. 

page 

"Personalty  65 

'^Qciw.iary   distress  46 

-R- 

Refomirtion  10 

Remedies,    equitalDle  25 

r.erormrtion  1^5 

Ca'"cellation  25 

RpeciTic    enf orcemoiit  25 

Rel-'tion  fron  v-'ich.   fraud  ^.vill   oe    inferred  48 

Speci-ic   Perionnance  19 

Speciiic   "^erf ormance   and  Rex^orr.!-  tion  20 

Special  heads    of    equity  jurisciction  51 

Statutory  provisions  62 

Satisf rctioa  66 

Le^c^cies  "by   subsequent  le^rcies                   6o 

deots  "by  lecE-cies  66 

portions  by    le-;;acies  66 

legacies  by  portions  66 

-T- 

Trustee  59 

-U- 

Usurious   contracts  42 


Voluntary  power 


T.'arranty  39 

'Jidow  59 


Satisf  ;.:Ction 

of 

Sat  isf action 

of 

Satisf ict  ion 

of 

Satisfaction 

of 

oOo- 


LECTURES 


0   IT 


EQ^UITY       PLEAD  IiTG        MB        PRACTICE. 

B   Y 
PROP.   BRADLEY  M.    THOLIPSON,    M.S.,    LL.B. 


Written  from  lianuscript. 


UNIVERSITY     OP     M   I   C   H   I   G  A  IT. 
Law  class   of   1904. 


Edwards  Bros. Publishers, 

Ann  Arbor,   Mich. 
-1903- 


EQUITY        PIxJADlA'G       Al.ID        PRACTICE . 


CHAPTER      I. 


SUIT  III  EQUITY. 


A  suit  in  Ec^uity  is  coriL'r.enced  oy   filing  in  the  court  having 
jurisdiction  of  t)\e   erase,  a  oill,  or  petition,  setting  forth  in 
a  full,  clea.r  and  methodical  manner  the  facts  and  circurastances 
upon  which  the  complainant  bases  his  claim  for  aid  and  relief,  and 
praying  that  he  may  be  ;5iven  such  specific  relief  o.s  he  believes 
he  is  entitled  to  or  such  general  relief  as  is  agreeable  to  equity 
and  f^ood  conscience.   Tlie  bill,  or  petition,  in  equity  t3.kes  the 
place  of  a  declaration  at  corimon  law.   The  party  v/ho  commences  the 
suit  is  called  the  complainant,  or  plaintiff,  and  t?:.e  party  against 
whom  the  suit  is  brouj'nt  is  called  the  defendant.   The  bill  of 
com.plainant  is  not  entitled,  because  there  is  no  suit  pendin.-?  until 
the  bill  has  'oeen   filed.  All  subsequent  p?.pers  and  proceedings 
are  eiititled  in  the  court  aiid  c,i:se;  for  ex:unple,  if  John  Doe 
files  a  bill  of  complaint  against  Richard  Hoe,  in  the  Circuit 
Court  for  V/ayne  County  in  Chancery,  the  defendants  answer  would 
be  entitled  as  follows: 

The  Circuit  Court 

For  Wayne  County, 
In  Cl'.ancery, 
John  Doe, 

Complainant , 
vs. 


Richard  Roe. 


Defendant, 


PARTS  OF  A  BILL 


The  form  of  a  bill  in  equity  is  not  due  to  any  statute,  but 
to  the  practice  of  the  court  and' has  oeen  established  by  long 
usa-^e.   It  was  for-mally  supposed  that  a  bill  of  coniplaint  contained 
nine  parts,  and,  althou^x  at 'no  time  were  they  all  essential,  and 
som.e  of  tliem  have  loeen   superseded  by  the  rules  of  court,  it  is 
still  desirable  that  the  student  should  be  fa.miliar  with  the  old 
division.   These  parts  consisted  of:   1.  Ad.iress;  2. _ Introduction; 
3.  Premises  or  statin.j;  part;  4.  Conf ederatin^;  part;  D.  Charging 
part;  6.  Clause  of  Jurisdiction;  7.  Interrogating  part;  8.  Prayer 
for  relief:  9.  Prayer  for  process. 


EQUITY        PL3ADING        AM)       PrJ^CTICE.  2, 

I.  ADDRESS   OF  THE  BILL. 

The  bill  of  complainajit  is  addressed  to  the  Judge  or  Judges 
of  the  Court  in  which  the  suit  is  coinmenced. 

In  England  the  bill  was  addressed  to  the  Lord  Chancellor  or 
other  person  having  for  the  time  the  custody  of  the  creat  seal. 
In  a  cirsuit  court  of  the  United  States:   "To  the  Jud.^es  of  the 
Circuit  Court  of  the  United  States  within  and  for  the  District  of 

sitting  in  equity."   In  this  state  the  bill  is 

addressed:  "To  the  Circuit  Court  for  t::'e  County  of  , 

in  Chancery." 

II.  THE   IiTTRODUCTION. 

After  addressin:^  the  court,  the  complainant  introduces  him- 
self.  This  part  of  the  bill  should  contain  the  name  and  residence 
of  the  coiuplainant.  And  if  he  brir.-s  the  suit  in  a  representative 
capacity,  for  the  use  and  benefit  of  a  third  person,  he  should  so 
inform  the  court.   The  residence  of  the  complainant  must  be  given 
to  enable  the  defendant  to  resort  to  the  com.plainant  for  Ms  costs 
or  to  enforce  compliance  with  any  order  that  may  be  made  by  the 
court  durinf^  the  pro.^ress  of  t--.e  proceedin-^s, 

III.   STATIisTG  PART. 

This  part  of  the  Dill  should  contain  a  full  narrative  of  all 
the  facts  and  circimstances  of  t?ie  complainant's  case.   It  is  upon 
this  part  of  the  bill  that  he  must  ground  his  rig>it  to  relief.   It 
must  show   that  the  court  has  jurisdiction  to  hear  and  determine 
the  matter  in  controversy  and  assu-ming  that  the  statements  made 
are  true,  that  the  complainant  is  entitled  to  the  aid  and  assist- 
ance of  the  court.   The  testimony  necessary'"  to  establish  the   facts 
stated  is  not  to  be  set  out,  but  the  facts  themselves  must  be 
af finned,  that  the  complainant  m^ay  introduce  his  proof,  for  no 
evidence  will  be  considered  "oy   the  court  not  having  reference  to 
some  fact  put  in  issue  by  the  pleadings.   The  coinplainant  is  not 
required,  however,  to  set  forth  any  fact  of  which  tlie  court  is 
bound  to  take  judicial  notice.  Pacts  are  to  be  stated,  not  con- 
clusions of  law. 

IV.   CHARGE  OE  COi^TPEDSRAC/. 


^O 


This  part  of  the  bill  charges  that  the  defendants  intending 
to  injure  ajid  defraud  the  complainant  have,  with  divers  other  per- 
sons, at  present  unknown  to  the  complainar^t ,  but  when  ki:own  he 
prays  may  be  made  defendcuits  to  his  bill,  confederated  and  combined 
together  for  the  purpose  of  injuring  and  defrauding  him  of  his 
rights.   This  clause  is  never  necessary  unless  there  has  been,  in 
truth,  an  actual  conspiracy  upon  v/hich  fact  the  compl':.inaiit  relies 
as  making  a  part  of  his  case.   It  is  said  to  have  arisen  from  a 
two-fold  error;  first,  that  parties  could  not  be  added  to  the  bill 
by  amend-ment,  wherea,s  there  never  was  a  tiine  vvhen  this  could  not 


EQUITY   PLEADING   Aim        PRACTICE.  3. 

have  oeen  done;  and,  second,  that  an  alleviation  of  a  confederacy 
would  be  sufficient  of  itself  to  sustain  the  jurisdiction  of  the 
court,  but  a  si^nple  confederacy  and  comoination  was  never  suffi- 
cient to  ~ive  the  court  of  equity  jurisdiction. 

V.      CIL'iHGIiia  PAF-T. 

This  part  of  the  bill  alleges  t>ie  pretences  7fhich  it  is  sup- 
posed that  the  defendant  will  make  as  his  defence  to  the  case  made 
by  the  complainant  in  the  stating  part  of  his  oill.   It  is  used 
for  the  purpose  of  obtaining  a  discovery  of  the  defendant's  case, 
or  to  put  in  issue  some  matter  which  it  is  not  for  the  interest  of 
the  coiriplaincmt  to  adndt.   ihe  example  '^iven  by   Lord  Redesdale 
(Mitford's  PI.  and  Pr.  in  Eq.  36)  is  as  follows:   He  states  the 
case  of  an  }:eir  filing  a  bill  upon  any  equitable  ground,  who  appre- 
hends that  his  ancestor  has  left  a  will.   He  .niay  state,  by  way  of 
pretence,  that  the  defendant  claims  vuider  such  will,  and  thus  make 
it  a  parx  of  his  case,  without  admitting  it;  and  the  heir  then 
denies  the  existence  or  due  execution  of  tiie  will  and  char.'jes  that 
it  is  fraudulent.   Under  the  rules  of  tiie  supreme  court  and  those 
of  most  of  the  states  retaining  chiancery  practice,  this  portion 
of  the  bill  may  be  inserted  in  the  stating  part  or  altogether 
omitted. 

VI.   AVSRilENT  01'  JUHISDICTIOK. 

This  clause  avers  that  the  acts  complained  of  are  contrary 
to  equity,  that  the  complainsuit  has  no  remedy  at  law  and  can  only 
oDtain  relief  in  a  court  of  eqxiity.   This  averment  was  intended 
originally,  apparently,  to  give  tlie  court  jurisdiction,  but  it  no 
longer  answers  that  purpose,  if  it  ever  did.   iJo  mere  assertion  of 
the^complainant  will  give  the  coi.irt  jurisdiction.   If  the  facts 
and  circujTistances  set  forth  in  the  Stating  Part  do  not  make  a  case 

oe 


court  has  jurisdiction  to  hear  and  determine  the  matter  and  ought 
so  to  do.   This  clause  seems,  therefore,  equally  nugatory  with 
that  of  confederacy. 

VII.   INTEFJ^OGATING  PARI. 

The  bill  havin-T  up  to  this  point  oeer.   drawn  with  a  view  of 
showing  that  tv,e  complainant  is  entitled  to  relief  and  that  the 
court  has  jurisdiction  to  grant  such  relief,  now  prays  that  the 
defendants  may  answer  all  the  matters  therein  set  forth,  not  only 
according  to  their  positive  knowledge  of  the  facts  stated,  but 
also  according  to  their  rem.emibran'.e,  the  information  tr.ey  may  have 
received,  and  the  belief  they  have  oeen  able  to  form  on  the  sub- 
ject.   At  the  first  this  clause  closed  with  a  :enerai  prayer,  that 
the  defendants  may  answer,  etc.,  that  oeing  supposed  sufficient 
to  procure  the  discovery  sou-ht  for.   But  it  was  soon  louna  tnat 


EQUITY  PLEADIITG  AM)     PRACTICS.  4. 

the  Ingenious  solicitor  could  ijiswer  in  such  general  terns  that 
the  substance  of  the  question  would  not  be  touched.   To  meet  this 
difficulty  it  soon  became  custo.Tiary  to  set  out  special  interroga- 
tories covering  every  specific  fact  material  to  be  answered,  and 
also  all  facts  and  circumstances  surrounding  the  niain  fact.   The 
defendant,  however,  ceoinot  be  interrogated  as  to  any  fact  not 
charged  in  the  bill.  He  is  siaiply  required  to  answer  the  complain- 
emt's  case  and  these  interrogc.tories  are  to  enable  hi.m  to  do  so 
fully  and  fairly.   He  is  r.ot  required  to  do  more  than  that,  there- 
fore he  rc^y   refuse  to  aiisv/er  any  interrogatory  the  answer  to  which 
would  not  oe  responsive  to  soir.e  fact  charged  in  the  oill. 

Since  in  iToost  of  the  states  parties  rriay  be  exarrdned  as  wit- 
nesses, it  is  customary  now,  in  most  cases,  to  expressly  waive  an 
answer  u;-.der  oath,  ai'id  to  onut  interrogatories  altogether, 

VIII.   PRAYER  FOR  RZLI3F. 

The  prayer  for  relief  is  usually,  first,  a  special  prayer  for 
the  particular  relief  that  tr.e  pleader  thinks  he  is  entitled  to, 
and  then  a  prayer  for  general  relief,  so  that  should  the  court 
refuse  to  grant  the  specific  relief  asked,  the  coniplainant.  may 
obtain  such  relief  as  the  court  thinks  he  is  entitled  to.   It  is 
never  safe  to  omit  a  prayer  for  general  relief.   Indeed,  unless 
the  plaintiff  asks  for  an  injunction  or  a  writ  of  ne  exeat,  the 
prayer  for  general  relief  is  sufficiei'.t  to  entitle~~nim  to  such  a 
decree  as  his  case  merits,  provide!  tJie  relief  asked  for  at  the 
hearing  is  authori^ied  by  the  facts  stated  in  the  bill.   If  an 
injunction  or  a  v;rit  of  ne  exeat  is  desired,  it  must  be  specially 
prayed  for. 

IX.   PRAYER  POR  PROCESS. 

The  bill  in  the  last  place  prays  that  a  writ  of  subpoena  may 
issue  requiring  the  defendants  to  appear  and  answer  the  matters 
alleged  against  them,  and  abide  the  determination  of  the  court  on 
the  subject.   The  prayer  for  process  in  the  oill  should  contain 
the  nsmes  of  all  the  defendants,  and  if  any  of  them  are  known  to 
be  infants  under  age,  or  otherwise  u:'ider  gtiardianship ,  that  fact 
should  appear  so  that  t'ne  court  may  take  order  thereon  a-s  justice 
;nay  require.   Yihen  a  corporation  is  made  defendant,  the  oill  should 
pray  t^-at  it  appear  according  to  law.   If  an  injunctioi:  or  a  v/rit 
of  ne  exeat  is  desired,  tl-.sre  m.ust  be  a  special  prayer  therefore, 
anj~Tt  must  be  also  asked  for  in  the  prayer  for  process. 

These  nine  parts  of  the  bill  in  chancery  I  have  given  you 
because  you  will  find  them  given  in  3.11  tlie  text-books,  and  much 
that  has  oeen  v/ritten  upon  equity  pleading  ajii  practice  could  not 
be  clearly  understood  v/ithout  a  kiiowledge  of  these  old  divisions 
of  the  bill,  but  you  will  bear  in  mind  that  the  "Confederating," 
"Charging,"  "Jurisdictional,"  cind  "Interrogating"  parts,  numbers 
4,  5,  6  and  7  are  no  longer  essential. 


2QUITY     FLmDTm     AI©     PRACTIO".  5. 

XJBAT  Aim  SIGITATIIKi:. 

The   Dill   of  corrrplaint   need  not    be   signed  oy  the  complainajit 
but   it  must    be   signed  by   tiae   solicitor.      Certain  bills,   bills  for 
divorce  aiid  those   asking  an  injunction,    for  instance,   must   be 
sworn  to. 

Chejicery,    rule   two   of   this   state,   prescribes   that  the  oath 
administered   to   the  party   shall  be   in  suostance   as  follows:      "That 
he  has   read   t}ie  bill,    or  heard   it   read,    and  knows   the   contents 
thereof,    and   that   the   same   is    true   of  his   own  Iaio'.vled;;e,    except 
as    to    the       matters  whJ.ch  are   therein  sts.ted   to   be  upon  infor.Tia- 
tion  or   oelief ,    and  as   to    those  riatters  he   oelieyes   it   to   be   true, 
and   that   the   suostance  of    tr.e  oath   shall  be  stated   in  the   jurat." 

Chancery,    rule  one  of  Michigan,    requires   every  bill  of   com- 
plaint  to  be   divided  into  para'^raphs  numbered  consecutively,    and 
that   each  paragraph  shall   contain,    as  near  as  Jiiay  be,    a  separate 
and  distinct   allegation.      "^fDnen   t}iere  is  no   such  specific   rule   the 
bill  need  not  be   divided   into  paragraphs,   but   the  practice   is   to 
be   commended  as   it  permits   a  ready   reference   to   any  part   of   the 
bill   in  case  of  amendment   or  upon   tlie  argument.      The  statute  of 
this   state  requires   tJyrtt  all  pleadings   and  proceedin,-s   shall  be 
fairly  and  legibly  written.      In   entitlin:^  and  endorsing  papers, 
made  by  either  party,    the   complaimint*  s  na.me  must  be  placed  first. 
At   least  one   copy  of   the  bill   shiould  be  made  and  retained   as   an 
office  copy. 

BRIIIGIMG   TTE   nEKilDAlIT   IFTO    COURT.      SUBPOENA  Aim  SERVICE. 

Since   every  one   is   entitled   to  his   day   in  court   and  must  be 
given   an  opportunity  to   defend  his   riiji-its  of  person  and  property, 
the  next   step    is   to   obtain   service  upon  the  defendant.      The  pleader, 
therefore,   haviaj  carefully  prepared  the   bill  files   it  with  the 
Register   of    the  Court   and  obtains   a   subpoena,      formerly  a  subpoena 
might   issue  before   the  bill  was   filed   but  now  ijinder   t:'?e  U.    S. 
rules   and  the   rules   of   this    state   the  bill  must  first  be  filed. 
In   this   state   a  subpoena  issues   as  a  matter  of   course  but   in   the 
United  State   court  a.  praecipe  must  b*;   filed  vath  the  clerk, 
(U.    S.    rules.  7,    11,    iW,     KTcH.    rule  1.) 

The   subpoena  is   a  writ   under  the   seal  of  the  court   directed 
to   the  defendant   requiring  him   to   appear  on  a  day  certain  and 
answer   the  bill.      Under  rule   12  of   the   Supre;rie  Court   of  the  United 
States   the  names   of   all   the  defer.dsmts  m.ay  be   entered  in  the   same 
subpoena,   or,    at    the   election  of   the  complainant,    separate   sub- 
poenas? may  be   sued  out   for   ea.ch  defendant,    except   that   the  nairtes 
of  husband  and  wife  must   appear  in  the   same   subpoena.      Under  the 
Michigan  rules   the   subpoena  i-nust   contain  the  nsunes   of  all   the 
defendants.      It  !;Tust  be  signed   oy  the  Register   and  endorsed  with 
the  naiTie  of   tlie   solicitor.      (Mich,    rule  4,) 

FORM  OP   SUBi-OSlIA. 

The  present  form  of   t}ie   subpoena  in  Iilichigan  differs  mater- 
ially from  the  old  fonn.      At   first   the   defendant  was   require-i 
to   appear  u:ider  penalty    (sub  poena)    of  being  fined   a 


EQUITY  PISADIiJG  AITO  PRACTICE.  6, 

certain  sum,  $1,000.   Hence  the  name  of  this  writ.  Now  the  i-ules 
provide  that  unless  he  appear,  his  default  will  be  entered  for  not 
appearing  and  the  bill  taken  as  confessed  and  he  will  thus  oe 
deprived  of  malcing  any  defense.   The  followin:--  is  the  present  form 
of  a  chancery  subpoena  in  this  state.   It  is  entitled  on  the  back 
so  tiiat  when  it  is  properly  folded  the  title  will  appear  on  the 
outside. 


STATS  OP  UICHIG.AJT, 

The  Circuit  Court  for  the  County  of 

ni   CHANCERY. 


ss 


In  the  Name  of  the  People  of  the  State  of  Michigan; 


XjdocicxxX     To  , 
X  Seal  X 


Greeting: 


You  are  hereby  notified  that  a  oill  of  Complaint  has  oeen 

filed  agains-c  you  in  the  Circuit  Court  for  the  County  of  

i  n  Chanc  ery ,  by , . .  . , 


as  complainant,..,  and  that  if  you  desire  to  defend  the  same   you 
are  required  to  have  your  appearance  filed  or  entered  in  the  cause, 
in  accordance  with  the  rules  and  practice  of  the  Court,  in  person 
or  oy   solicitor,  within  fifteen  days  after  service  of  this  Sub- 
poena upon  you.  Hereof  fail  not  under  the  penalty  of  having  said 
bill  taken  as  confessed  against  you. 

The  return  day  of  this  writ  is  the  day  of  

A.  D.  190.. 

WITl!lESS,  the  Hon Circuit  Judge, 

at this day  of A.D.  190.. . 

Register, 

Solicitor  for  Complainajat . 

The  day  upon  which  the  suopoena  may  be  made  returnable  is 
fixed  by  rule,  Llichigan  rule  4  a.  provides  that  it  shall  be  made 
returnable  on  a  day  certain  (except  Sunday)  not  less  than  ten 
days  from,  the  issuing  thereof,   ibe  subpoena  is  to  be  served  on  or 
before  the  return  day  by  delivering-  to  the  defendant  a  copy  by 
complainant's  solicitor  and  inscribed  copy,  sliowing  tl-ie  original, 
under  the  seal  of  the  court,  at  the  ti:r.e  of  such  delivery,  to  the 
defendant.   Rule  4.  b.   It  may  be  served  in  any  part  of  the  state. 
The  service  need  not  be  rm^de  oy   cin  officer  of  the  court,  but  if 
made  by  an  individual,  such  service  must  oe  shown  by  affidavit. 
If  it  is  made  by  an  officer,  he  ;i-akes  his  return  of  service  on  the 
subpoena. 


EQUITY     PLLADIWG     AKD     PRACTICE.  7. 

PJl'TURl^T  OP  Siy-'^yTCS. 

STATE   OP  MICHIGAil,    : 
GOUiyTY  OP  :    SS 

I   iHREBY  CERTIFY  AM)  RILTURIT,    tliat ,    on  the    day  of 

A.  D.  190...,  at I  served 

the  within  Suopoena  personally,  on  

.defendant . .  .  .na:ned  in  si-id  Subpoena,  by  then  and  taere, 

at  tlie  place... and  on  the  date. .  .above  .Tientioned,  deliTerin;  to 

sa.id  above  na.ned  defendant a  true  copy  of  the  "sciid 

Subpoena,  inscribed  "copy"  and  subscribed 

._ Co:r.plainant  »3  Solicitor. . . . ,  and  oy 

s}iowin3  at  the  same  tirre   to  the  said  acove  named  Defendsjit 

the  said  Subpoena,  with  the  Seal  of  the  Court  impressed 

thereon. 


Dated A.   I).    190 Sheriff. 

When   the   subpoena  has   oeen  properly'-  served,    the  defendant   is 
bound  to   appear  and  answer   the   charges  preferred  against  him  in 
the  bill,    witliin   tiie   time  limited  oy  the  practice  of  the  court. 
Appearance   is   the  f onrial  proceeding  by  v/hich  the  defendant   submits 
himself  to    the   jurisdiction   of    the  court,    and   it   is  necessary  in 
every  case  before   a  decree   ccai  be  rendered  against  hiin  that  he 
appear.      Pormerly  when  the  defend rnt   did  not  voliincarily  appear 
after   being   served  v/ith  a   subpoena,    a  number  of    successive  pro- 
cesses were   resorted  to,    ending;  in  a  sequestration  of  his  property, 
for   the  purpose   of   compelling  an   appearance.      At   the  present    time 
in   all   the   states    there  are   statutory   enactments  makinj   the  process 
of  the   courts  more   effectual,    aiid  providinr  vjader   certcdn  circum- 
stances  that    tl^e   appearance   of   the   defendant  may   be  entered  by  an 
order  of   the  court   and    the  bill   taken  pro   conf esso.      Process   for 
effectinr^   the  coiipulsory  appearance  has   fallen   into   disuse   since 
the   enactment  of   these   statutes.      Only  one   is   in  use  in  this   state — 
attaclmaent--and   that   is  or.ly  resorted  to  when   the  answer  of   t]ie 
defendant   is   essential    to    the   complainant. 

Uiider  the  Ivlichi^-an  practice   a  defendant   desiring  to   defend  a 
cause,   or   to  have  notice  of   tlie  proceedings   tlierein,    3h.all   cause 
his   appearaxice   to  be  filed  or   entered  in   the  office  of  the  Register 
of   tie   court  within  fifteen  days   after   service   of  the   suopoena 
upon  him.  and  within   the  scm.e   time   shall   serve  upon  the  complain- 
ant's  solicitor  notice  of   such  appea.rance.      (Rule  5.    a.   b.) 

Such  notice   shall  be   entitled   in   the  ca.use   and  aidressed   to 
the   solicitor  and  ma,y  be  in   the  following  form: 

"Take  notice ,    that    tlie   defendant , ,   hereby  appears 

in   the   above   entitled  cause  and  demands   a  copy  of   tlie  bill  of   com- 
plaint  tlierein. 

Dated 


Yours,    etc., 

Solicitor   for  Defeiidani 


iJlQUITY     PLliADIIIG     MID     PRACTICE.  8. 

The  practice  in  the  United  States   Court    is   re^^ulatel  by 
Rules  2,    11,    12. 

If   the  defendant   does  not    appear  within   the  time  prescribed 
and   2;ive  notice  of  such  appearance,    the   conolainajit  .r.a;/  enter  or 
file  an  order   enterin:^  the  defendant's   appearance  c-u-id  also   taking 
the   Gill    as   confessed.       (Rule   7.)      Before   such  step   is  taken  by  the 
con-plain  ants,  proof   should  be  filed   showin:;  that  he  has   a  ri{iiit  to 
such  order.      The   returns   of   the  officer  makin-  the   service  of  the 
subpoena  is   sufficient  proof   of   that  fact.      Proof  of  non-appear- 
ance .Tiay  be  >nade   by  e.ffidavit. 

After   the  defeniant's    defaiilt  has   oeen  entered  and   the   bill 
taken,   pro   conf  esso ,    the   suit   tl\en  proceeds    ex  parte. 

dek^:!Tda:it's  dej^'hse. 

If   the   defendant  desires    to  .take   a  defense,   he   appears   in 
person  by   solicitor  or   in  person  and  under  the   rules   in  this   state 
he  can  derr.aaad   a  copy  of   the  bill  of  coruplaint   and  ho  has   fifteen 
days   after   receiving   the  copy   to  n-ia,ke  his   defense.      The   ch^iracter 
of  his  defence  will  depend  \ipoii  the  nature  of   tl-.e  case  made   in   th.e 
bill,    and   is   either   by  disclaimer,    oy  demurrer,    by  plea,    or  by 
answer.      All  of   these   several  defences  may  be   joined,    if  some  one 
of   them  is   the   appropriate   defence   to   some  part   of   the  bill, 

DISCLAIi/iER. 

If   the  defendant  has  no   interest   in  the   subject  matter  of  the 
suit,    he  may  avoid   the  plaintiff's   claim  by  a  disclaimer,    v/hich   is 
a   renunciation  on  his  part  of   all   interest   or   cl:i,im  in  the    subject- 
matter  of  the  plaintiff's   claim.      Upon  filing  the  disclaimer  the 
plaintiff  will  be    entitled   to   a  decree  ajainst    the   defendant. 
Vrnether  the  defendant  will  or  v/ill  not   oe  entitled  to  costs  will 
depend  upon  whether  or  not   it   is  his   fault   that  he  was  made  e. 
party   to   the  bill. 

DEvfuPdlER. 

If  on   the  face   of   the  bill,    the   complainajit   is  not    entitled 
to    the   relief  prayed  for  or  any  portion   of   such  relief,    for  axiy 
re?.son,    either"  due   to   facts   stated  or   on   account   of   omissions  or 
other   defects,    the   defendant  may   demur.      The   demurrer   a'±Tiits   the 
truth  of   all  facts  well  pleaded  end  submits   to   the  court    the  ques- 
tion,   vfhether  or  not   tlie   defendant   shall  be  required  to  make   any 
further  or  other  ansv/er. 

FOHJ^l     OE     rtilflJfJKSR. 

In  the  demurrer  the  defendant  protests  that  th.e  allegations 
of  fact  contained  in  the  bill  are  not  true,  but  says  if  they  were 
true,  and  assuming  them  to  oe  true,  the  plaintiff  is  not  entitled 
to  any  relief,  and  craves  the  judgment  of  the  court  y/hether  he 
shall  be  required  to  make  any  further  answer.   A  general  dem.urrer 
for  want  of  equity  rr.t.y   be  in  the  following  fonn: 


EQUITY     PLICADIITG     AM)     PRACilCE.  9, 

■TttLS 

The   demurrer  of  Richo.rd  Roe,    the  ief  eada'^.t ,    to    the   Dill  of 
cor.plaint   of   John  Doe, 

This   defendant  by  protestation,    not   confessing-  ai:y  of   the 
matters,    in   and  by  said   oill  complained  of    to   oe  true   in  manner 
and  form,    as    the  same  are   set   forth,   eays   tliat  :^.e   is   advised  tjiat 
there   is  no   matter  or   thin,-:   in   said  bill,     :ood  and   sufficient   in 
lav/,    to    call    this   defendant    to   account,    in   this  honorable   court 
for   the   sane;    out   that    there   is   .^ood  ct.use  of  demurrer   thereto, 
and  he   does  demur  accordingly  and  for   cause  of  demurrer   says,    that 
the   bill,  in   case  t.ie   s&jne   are  true,    conta,ins  no  matter  of   equity 
v/'iereon  this   court   can  /ground  ai^y  decree,    or   i-ive   the  complainant 
a;:;ainst   this   defendant.      whierefore,    ajad  for  divers  other   errors   in 
s?ld  bill   contained   and   appearing;  on   the  face   thereof,    this  defend- 
ant  does   demur   thereto,    and  hujTibly  craves   the   jud.jment   of   this 
honorable   court,   lA^iether  he  is   compellaole,    or  ouijlit   to  make,   any 
ansv/er   thereto   otherwise   trian   as   aforesaid.      And  tV.is   defendant 
prays   to  be  hence   dismissed  with  his   costs   and   c}iar  ;';es   in   this 
iDehalf  most   wronisfully   sustained.      A,  3.    Solicitor   for  Defendant. 

The   demurrer   tenders   an  issue  of   lav/  end  if  decided  in  favor 
of    the  defendant,    that   is,    if    the  densirrer  is    sustained,    the   com.- 
plainant  must   s^nend  his  bill   or   the  bill  v/ill   oe   iism.issed.      If 
t'-.e   demurrer  is  overruled   the  defendant   must   ansv/er. 

The  demurrer  iHciy  be   to   the  vfriole  bill  or   to   some  portion  of 
the  bill 

PLEAS . 

If   the  defendant   cannot   demur   there  may  oe   some    iefect   in   the 
com.plainant •  s   case,   which  does  not   appear  up.on   tl.e   face  of   tlie 
bill,    that   constitutes  a   special    lefence   to  his   recovery,    it  may 
oe  t^ken  advantage  of   oy  plea.      A  plea  is   defined  as   a  special 
answer,    shov/in^  or   relyin  :  upon   one  or  more    things,    as  a  c£i,use 
why  the   suit   should  be  either   dismissed,    dela:yed  or   debarred;    it 
does  not,    like   a  demurrer,    rest   on   facts   char.-ed   in  the   comr)lain- 
ant's  bill,   but  alleges   other  facts,  to  which  tlie  complainant  may 
reply.      The  office   of   the  plea  is   to   brin;;;  i'orward   a  fact  v;^iich, 
if*  true,    displaces   the   equity  of   the   bill. 

Pleas   are   divided  into    three   classes: 

1.  Pure  or  Affirmative. 

2.  Negative. 

3.  Anomalous, 

If  the  special  defence  relied  upon  is  some  fact  not  appearing 
on  the  face  of  the  bill,  it  is  called  a  Pure  or  an  Affirmative 
plea.   If  it  is  the  non-e>:istence  of  some  fact  affirmed  in  the 
bill  and  essential  to  the  plaintiff's  rir^^.t  of  action,  it  is 
celled  a  Negative  plea.   If  it  is  a  fact  admitted  in  the  bill  out 
which  the  complainant  seeks  to  nullify  and  destroy  by  alleging 
that  its  e::istence  is  due  to  the  deceit  or  fraud  of  the  defendant, 
and  the  defendant  desires  to  rely  for  his  defence  upon  such  fact, 
he  may  affirm  its  existence  and  deny  the  fraud  or  deceit  charjed. 
Such  a  plea  is  called  an  Anomalous  plea. 


Pleas  hav 

1.      ' 

2.      ■ 

3. 

4, 

The 

for;:,  i 

EQUITY     PLM]ADBrG     AITO     PRACTICE.  10. 

5   also   been  arranged   in  four  classes: 

Co    the   jurisdiction. 

:o   the  person  of   the  plaintiff. 

To   the  bill   or   tl- e  fonii  thereof. 

In  bar. 

of  a  plea,  like  that  of  a  der;iurrer,  cosmnences   vdth. 
a  protestation  against  confessin-  t}-.e  oruth  of  any  matter  in  the 
bill.   It  should  distinctly  sliov/  whether  it  roes  to  the  v/hole  bill 
or  only  a  part  of  it.   The  defendant's  "rounds  of  objection  to 
the  jurisdiction  of  the  court,  the  person  of  f •  e  plaintiff  or  in 
bar  of  suit,  must  be  supported  'oy   ^^verments,  so  clear,  positive 
and  distinct  of  ever;/  fact  and  circuristance  essential  to  render  it 
a  complete  equitable  bar,  t::at  the  coinplainant  r:ia.y   be  enaoled  to 
take  issue  upon  its  validity. 

1.  A  plea  to  the  jurisdiction  does  not  dispute  the  ri  :;."-t  of 
the  3ompl?cinaiit  in  the  suit,  out  asserts  tii.-.o  iiis  clair.:  is  not  a 
fit  subject  of  cognizance  in  a  coiirt  of  equity'',  or,  that  sor.ie 
other  tribtmal  is  vested  v/ith  the  proper  jurisdiction.  Llost  juris- 
dictional defects  con  oe  renciied  by  a  deroirrer;  but  -Gr^e   truth  may 
not  appear  on  the  f-jce  of  the  Dill.   For  instance,  the  Circuit 
Court  of  the  United  States  has  no  jurisdiction  to  'lear  and  deter- 
rrdne  causes  between  citizens  of  the  saiue  state,  and  if  the  bill 
should  allege  that  the  complainant  and  defendant  were  citizens  of 
different  states,  the  fact  that  they  v/ere  citizens  of  t!ie  same 
state  could  only  be  contested  oy   the  defendant  by  a  plea  to  the 
Jurisdiction.   The  plea  must  contain  somethinj;  ^nore  trian  a  mere 
alle;;:D.tion  of  a  want  of  jurisdiction,  jurisdiction  will  oe   pre- 
sumed unless  the  specific  fact  is  pointed  out  which  deprives  the 
court  of  jurisdiction. 

2.  A  plea  to  the  person  merely  disputes  the  ri-'ht  of  the 
cojnplainant  to  sue;  for  instance,  trat  he  is  an  infa.it,  an  idiot 
or  a  lunatic. 

3.  The  usual  plea  to  the   bill  or  the  frame  of  the  bill  are 
either:   (1)  the  pendency  of  another  suit>  for  t'.e  sa-ne  matter  in 
another  court  of  equity,  or,  (2)  the  want  of  proper  parties  to 
the  bill, 

4.  Pleas  in  bar  are,  (1)  pleas  founded  on  so::ie  bar  created 
by  the  statute.   The  most  usual  of  this  character  are  th.e  statute 
of  limitations  and  the  statute  of  fraud.   (2)  Pleas  founded  on 
matter  of  record,  that  tl^ere  has  oeen   a  judgment  at  lav  of  o  court 
of  record  between  the  sa.m.e  parties  for  the  s£'jne  cause  of  action, 
or  a  final  decree  or  order  of  a  court  of  equity  in  a  suit  between 
tiie  same  parties  and  for  the  sajne  subject  matter.   (3)  Pleas  of 
matter  in  pais  are  pleas  of  stated  account,  of  a  release,  of  a 
purchase~for  vB,luaole  consideration  without  notice,  etc. 

The  rules  of  the  United  States  Courts  and  the  Michigan  rules 
require  that  the  plea  shall  not  be  filed  e.ccepo  upon  the  certific- 
ate of  counsel  that  in  his  opinion  it  is  v.'ell  founded  in  point  of 
law  and  supported  by  the  affidavit  of  the  defendant  stating  that 
it  is  not  interposed  for  delay  merely  and  that  he  oelieves  it  to 
be  true  in  fact.   (U.  S.  Rule  31;  Mich.  Rule  8.  a.) 


T^qUITY     PL"^ADnTO     ML     PKACTIC3.  11. 

POPil  OF  PL3A. 

vmen  another  suit  is  pendin:;  for  t'-e  sa^ne  cause  of  action  the 
plea  may  be  in  the  follovan  ■  form; 


The  Plea  of  Rich;;.rd  Roe,  the  defendant,  to  the  Bill  of  Com- 
plaint of  John  Doe. 

This  defendant,  by  protestation  not  confessing  any  of  the 
:3;iatters  in  said  bill  contaiced  to  be  true  in  maimer  and  form,  as 
the  same  are  therein  set  forth  doe?  plead  thereuiito,  and  for  cause 
of  pier,  suys,  tliat  heretofore,  and  before  complainant  e:;c]iibited 
his  present  bill  in  this  Honoraole  Gourt  on  the  9th  day  of  Feb- 
ruary, 19   ,  the  said  complainant  did  erdiibit  his  bill  of  complaint 
in  thi3  ifonorable  Court,  against  the  said  defendant  for  the  same 
matters  and  to  the  sa^r.e  effect  ai:d  for  t;e  like  relief,  as  the 
said  now  complainaiit  doth  by  his  present  bill  demand  and  set 
forth:  to  which  said  bill  this  defendant  did  put  in  his  euiswer, 
and  the  said  complainant  thereunto  did  reply;  ?jid  other  proceed- 
ings come  t'.ereupon  had,  and  the  said  former  oill  is  still  pending 
in  tliis  Court,  and  the  matters  t!:ereof  u^-idetermined;  and,  therefore, 
this  de-^endant  doth  plead  t"\e  fonaier  oill,  answer  and  proceedings, 
in  bar  tc  the  present  bill;  and  hiimoly  prays  the  judi^ment  of  this 
honoraole  court,  whether  it  oehooves  him  to  make  another  or  fur- 
ther answer  thereto  thsjn  as  aforesaid,  ejid  prays  to  be  hence  dis- 
missed v.dth  his  reasonable  costs  and  charges  in  this  behalf  most 
wron.^fully  sustained. 
A.  E.   Solicitor  for  Defendant.  Richard  Roe 

The  plea  must  be  signed  by  tlie  solicitor  for  the  defendant. 
In  fact,  all  papers  filed  by  either  party  must  be  sijned  by  the 
solicitor  of  the  party  in  whose  belialf  the  scjne   are  filed.   The 
plea  must  be  signed  by  the  iefendant  s.nd  must  be  verified  in  all 
cases  where  the  answer  must  be  ;'nade  under  oath. 

The  plea,  unlike  the  demurrer,  does  not  tender  an  issue, 
either  of  law  or  fact.   If  the  defendant,  assuming  that  the  state- 
ments of  fact  in  the  plea  are  true,  celieves  that  they  do  not  con- 
stitute a  sufficient  defense,  he  notices  the  plea  for  argxment; 
such  notice  having  the  effect  of  a  iemurrer  to  the  plea.   The 
only  question  presented  in  such  ar 'jument  is  the  sufficiency  of  the 
plea.  "   If  the  Court  sustains  the  plea,  finds  it  good  in  form  and 
a  valid  -.uid  si;fficieni»  defence,  the  complainant  may  put  in  issue 
the  truth  of  the  plea,  by  filing  a  replication. 


TI-TLE 


FORIA  OF  Ri;PLICATIO:i. 

THE  REPLICATION  of 

John  Doe,  comiplainant  to  the  plea 

of 

Richard  hoe,  defendant. 


This  .Repliant  saving  and  reserving  to  himself,  now  and  at 
all  times  hereafter,  all  and  all  manner  of  oenefit  £uid  advantage 


EQUITY     PUIADTJG     /oID     PPJ^CTICS,  12. 

of   exception  which  r.iay  be   taken   to   the  manifold  insufficiencies 
of   the   said  plea  for   replice^tion   thereunto,    says   that  he  will 
aver,    ^naintain   and  prove  his  Bill  of  Co-Tiplaint   to    be   true,    certain 
and   sufficient   in  the  lav/,    to   be   answered  unto;    and  that  the  said 
plea  of  defendant,    Richard  i-.oe,    is  uncerto.in,   untrue   c^ni   insuffi- 
cient,   to  be   replied  unto   by  this  xtepliant  without   this,    that  any 
ot:  er  :'na.tter  or  thin  ;  whatever,    in   the    said  plea  contained,   mater- 
ial  or   effectual   in  the  lav/,    to    oe   replied  unto,    and  not  herein 
and  hereby  well   exil  sufficiently  replied  ijinto,    confessed  ojnd  avoid- 
ed,   traversed  or   denied,    is   true;    all  v/hich  matters   and   things 
tills  Replicjit   is   and  will   be   ready   to   aver,   maintain   aiid  prove, 
as    this  Honorable   Court   shall  direct,    and  humbly  pray  as   in  and 
by  his    said  bill  he  has   already  prayed. 

A.   B.      Solicitor   for   Com.plainant. 

The   replication  adjnits   that    the  plea  is   200<i  i^  form  and   sub- 
stance and  puts   in   issue   tl;e   truth  of   its   alle2ations   of   fact, 
and   tlie  parties  proceed  to    take  proofs   the   same  as   \^ihen  a  replica- 
tion  is  filed   to  am   answer. 

If  upon  ar;;^ment   t.j.e  plea   is  overruled   tiie  defendant   •■nust 
ansv/er,    and  in   default   of  his   ansv/erin--   the   bill,    or,    so  much 
thereof   as  wrs   covered  by  the  plea,    will   oe   taken  pro  confesso. 

If  upon  arpoinent   the  plea  is   allowed  z'le  complainant  .:iay   be 
permitted  to   amend  his  bill.      In  case   t?;e  bill   is  not  ainended  and 
no   replication   is  filed  to    the  plea,    the  bill,    or   so  much  as  was 
covered   by  the  plea,    v/ill  oe  dism.issed. 

If  upon  an  issue  of  fact,  the  facts  stated  in  the  plea  are 
determined  for  the  defendant,  they  shall  avail  him  as  far  as  in 
law  and   equity   they  ou':$:at    to    avail  himi. 

If  upon  an  issue   of   fact   the   facts   are  determixied  for  the 
complainant,    the    effect   shall   oe   t]-e   same  as   though  the  oill  or   so 
much  thereof   as    is   covereJ.  by   the  plea  was   taken  pro   confesso. 
(U.    S.    Rules   33,    34;    I.iich.   Kule   8.) 

If   there  is  nothing  in   the   oill  of  the   complainant   to  v/hich 
the   defendant   is  acle  or  willing   to  demur;    and  if  he  have  no   ex- 
trinsic matter,   wliich  he  can  offer   'oy  way  of  plea;    or   if  his  plea 
or   demurrer  has   'oeen  overruled,   he  ma>'  proceed   to   controvert   the 
claim.s   of   the  plaintiff  by  filing  an  answer  to   the  bill.      The 
answer  need  have  no  particular   form,  as   to    tliat  part  v/h.ich  sets 
forth   the   def  endi3.nt '  s   case.      It   is  usually  drawn  so   as   to  admit   in 
tlie  first   instcuice  all   the   alle.^ations   contained  in  the   complain- 
ant's  bill  which  are   true,    and   then   follow  denials   of  all  tne 
alle---ations  m^de  which  are   in  dispute.      j.f  there   are   any  state- 
ments  in  the  bill  upon  which   the  defendant  has  no   loiowledge  or      _ 
information,   he    states    that   fact   and  leaves   the   complainar.t   to  his 
proofs.      Then  follows   a  statement  of   all  facts   and   circum.stances 
constituting   the  defendant's    defense.      If   th_e   Dili   contains   inter- 
ro--atiQns,    each   interrogatory   is   to    be   answered  separately  and   tne 
aniwers  nambered   to   correspond  with  the  numDers   of    the   interroga- 
tories,    ^"hen   the  defendant    submits   to   e_aswer   at   all,   he  ;:a^st  .Vx^.e 


EQUITY     PL-J-ADIJG     .^MD     PHACTICZ:.  13. 

a   full,    frank  3.nl   e:;plicit   ra-iswer   i-.s   to   all  matters  material   or 
necessary   to    be   aiiswered,    resting  within  his  own  personal   knowl- 
elj;e,    or  upon   i^if onnation   an!  oelief. 

FORM     0?     AilS'r^R. 


The  Answer   of  Richarl  ..oe,     '.efc-ndant,    to    the  Bill  of  Complaint 
of   Jolin  Doe,    complainant. 

This   defendant,    now  and  at   all   tLries  hereafter,    reservin:;;  all 
manner   of   benefit   end  advant^.^e   of  e::ception   to   the  many   errors 
and   insufficiencies   in   sc.id   oill   C0i:ta,ined,    for   answer   thereto, 
or  unto    so  much,    or   such  parts   thereof  as   this   defendant   is 
advised   is  materia,l   for  him  to  make   answer  unto,   he   answers   and 
says:  --(here  follows   esi  answer    to   e.^-cj:-  of  the  paragraphs  of   the 
bill  of  "complaint   and  an   answer~To    each  one   of    zhe  interrogatories. 
This   is   followed  'o:.'~~a  TUir  end  cTear   otatemerTT  of   tlie   defendant's 
defence   es^i-l  Gldse"3~'wTt]"    the  forn-cal   st"atem.ent.\;~~- 

ijiis   defenda:it   :ienies   all   unlawful   co.'abination  in  s£dd  bill 
char  Ted  without   t?J.s   that   any  ot?ier  matter   or   thing  m.aterial   for 
himi  to   make   .-.nswer  to,    and  not  liereixi   sufficiently  ans-.vered, 
iivoided   or  denied,    is    true   to    the  knowled.:;;e  or  belief  of   this 
defendant.      All  which  matters   and  things   this  defendant   is   ready 
to  aver  and  prove  as   this   Court   shall   direct,    a.id  prays   to  be 
hence   dismissed,    with  his   reasonable  costs  and   charges   in   this 
behalf  most   wrongfully   sustained. 

A,   B.  Richard  Roe, 

Solicitor  for  Complainant. 

The  ansv/er  must   oe   signed   oy  f.e  defendaiit   and  must   be   sworn 
to,    imless   his   answer  under   oath  is  v/aived  in   the  bill. 

ileither  a  sworn  answer  nor  o.   sworn  bill   in  Michigan  has    the 
force  of   evidence   except   as   to    u^dr.iissions ,    aiid    except  upon   the 
hearin^f  of  mictions   ajid  petitions.    (Rule   10.)      At   com.mon  law  a 
sworn  answer  was   evidence. 

The  answer  should  be  divided  into  para.jraphs,  each  containing 
a  separate  and  distinct  allegation.  This  is  required  in  MichigaJi, 
(Rule  10.) 

The   answer,    liice  the  plea,    does  not   tender  an  issue   either 
of   law  or   fact. 

If   the   comiplainant   conceives   that   the  admissions   in  the 
defendant's   answer   are  alone   sufficient   to    entitle  him.  to   such  a 
decree   as  he  desires  he  may  set   do\'7n  the   cause  for  hearing  upon 
bill   and   answer. 

The   complainajit   does   not   deim-ir   to    t}:e   answer  in   such  a  case, 
but    simply  notices   the   case   for  hearing  upon   bill   aiid  answer. 

If   the  discovery  contained   in   the   snswer   is   incomplete,    or 
the   alle-^ations   contained   in   the   bill   are   insufficiently  replied 
to,    the  complainaunt  ma^'  prefer   exceptions   to   the  defendant's 
answer   and   require   it    to   be  more   full    and  particular.      T'.e   excep- 
tions m.ust   be  in  writing  and  si^e'l  by  counsel,    euid   they  m.ust 
also    state  with  precision  ;xnd   accuracy,    the  points    in  which  the 


J-CiUITY     PL:-^\DIlICr     ICJD     PHACTICii;.  14. 

defendant's   ai's^ver   is   defective,    or   f-ey  vill  be    rejected  as   vague 
&nd  impertinent.      Care  .r.ust   be   talzen  also    to  orait  no  point   to  which 
an   exception  v/ould  lie,    as   the    rules   of   the  court   io  not  permit 
any  of:  ers    to   be   afterguards   added.      It  .■-..'ay   oe   stated  generally 
thr.t   any  ansv/er  will  be   considered  i.-.suf ficient   in  which  the 
defendant   does  not   fully   respond,    accordin-j;  to    the    oest   of  his 
knowledge,    re.-ier.braiice     or  belief,    to    every  .material  allegation, 
charge  or   interrogatory  in   the   oill. 

V.hen   exceptions    i'.re   taken  to   the  ii-.suf  f ici  ency  of   the  ansv/er 
and  f::e  defendant   does  iiot    ajnend  his   answer,    t]ie   exceptions   are 
referred   to   a  .T.aster,    v/ho    is   directed    to   report   '.whether   the  ansv/er 
is    sufficient   in  the   points   excepted   to  or  not.      If   the  master 
reports   it   to   be   insufficient,    the  defendai-.t  .T^ust   suoniit   to  answer 
;^iore  fully,    unless   by  exceptions   to   such  report   of   the  inr.ster,   he 
appeals    to    the   judg-nent   of   the   court,    aiid  ootains   a  determination 
in  ""is   favor. 

The  pra-ctice   of  taking   exceptions   to    the  a-nsv/er  has    oeen  abol- 
ished  in  iLichigan.      Rule   10   f.    provides    that   all  objections   to   an 
answer  heretofore    raised  by  exception  shall   oe   disposed  of   oy   the 
couit  on   special  notion. 

If   the  complainant   does  not   desire   to   'lave   a  fuller  ansv/er 
an. I   Ci-.-mot  with   Sczfety   go   to   i..  hearin;:  upon   oill   and   ansv/er,  he 
files   a  replication  to    the   cr.sv/er,   which  x^uts   in  issue  all    the 
f;.cts   set   up   therein.      The   form  of   the  replicatio.n  to   an  answer 
is    tl:e    saiTie   as   that   to    a  plea,    except   that   the  v/ord  answer  is 
substituted  for  plea. 

INT5KL0GUT0RY     PROCh  DI.TGS. 

During  the  progress  of  a   suit  in  equity  it   frequently   oeco.mes 
necessary   to   mai<;e  what   are   know:!  as   interlocutory  orders   and  de- 
crees.     The  2Tio3t   imiportant   -and  usual   are   those   which  relate  to 
amendments   of  t.e  pleadinr,s,    t::e   appointment   of  a  receiver,   pay- 
ment of  money   into   court,    issue  of  an   injunction  and   reference   to 
a  master.      These  orders   are  mt8.de   oy   the  court  upon  motion  .made 
orally  or  upon  petition   in  writing. 

A!,I31-ID:ffi::^TS. 

In  a  court   of   equity  matters   of  form,  are  never   suffered  to 
prejudice   the   rights   of  a  party;    and  the  liberty  of   an  amendi.nent, 
often  upo.n   condition,   hov/ever,    is   allov/ed   to    all   kinds  of  pleading. 
If    the  bill  has  not   oeen   sv/orn   to,    under  the  rules   in  this   state, 
ti-.e   complainant   can   a.mend,    of   course,   without    t>e  payment  of   costs, 
before  the   demurrer,   plea  or  answer   is  put   in.     And  in  certain 
other  cases  he  may  aniend,    of  course,    afterwards,    out  usually_appli- 
cation  m.ust  be  made   to   court    oy  motion  for   leave   to  a.r;end.      ihe 
a-men±nent  must  have   reference  to  .Tiatters   existing  before   the   com- 
.mencement  of   the   suit;    a  m.atter  wh.ich  h::.s  occurred  since   the   comi- 
rnencem.ent   of   the   suit  must    be  brought   oefore   th.e  court  by  a  sup- 
ple::;ental   bill,      '.v^ien  a-r.end-m.ents   are  made   oy  leave  of   the   cou.rt, 
or,    of  course,    a  copy  of   the  bill   as  am.ended  is    filed  and  a  copy 


E(^UITY     PK^ADII^a      AzTD     PRACTICj^.  15. 

of    the  ameiiioients   referi-in-:   to    the  paragraphs    and  folios   aiiienied 
is   filed   ani  a  copy   of   such   a:.:en±i-ents   served.      T>.e  ajmendment   and 
ori-inal  bill   are   coixsidered,    for  .tiost    purposes,    as  one,    ani  make 
up   the   sa:v.e   record. 

APPOIUIIEIJIT  OF  A  hJC^iilVZR. 

Y/i.enever   in   the  progress  of  a   suit   a  proper   shovvin:  is  Liade 
to    t;ie   court   that    there  is  dari,:-er  of    t:ie  v;aste   and    destruction  of 
property  which  is   the   suoject   of   tr.e  litigation,    a   receiver  rm^j  be 
v.ppointed,    c;har_Ted  with   the   duty  of   carin-;  for   such  property. 

PAYi'isr-r  OP  }!^i:m  Iliujo  court. 

V/henever  it   appears   to   the   court   that   tV^ere   is   a  balauice  of 
money  v/hich   it   is    ad.*nitted   is   due   to   t.\e   co.r.plainant   in  tl-e  '-ands 
of   the  defendant,    \\e  will,    by  an  order  of  the   court,    be  directed 
to   pay  it   into    tne  hands  of   th.e   register.      And  the   court  may  /r.al-ce 
a  still  further    iirection  and  order   the  n^oney  so  paid  into   court 
to    be   deposited  or   invested  on    -^ood  security. 

KZERilLTaiS. 

'vY^ienever  it   is   necessary   in   toe  progress   of  a  cause   to    take 
an  account,    to   investi-^ate   the    title  of  persons  to  property  in 
suit,    or  make   any  ot/ier   inquiries  necessary   to   satisfy  the   con- 
science of   the   court,    or    to  perform  some   specipJ.  iriiuisterial  a.ct, 
sucli   as    to  sell  property,    etc.,    th.e   court   refers   the  matter   to  a 
circuit   court   commissioner.      References   are   of   such   frequent   occur- 
rence,   and  so   important,    that    they  form  the   suoject   of  a   suoordin- 
ate   system  of  practice.      (See  Koffm.an's   :..aster   in  Chs-'icery.) 

There  is   such  a  v.riety  of   orders   thc'.t    in  this  short    synop- 
sis  we  can  only  indicate  what    the  practice   is.      In  case,    for 
instance,    the   defeiidant  iias   money  in  his  hands    oelon-jinj;   to    the 
com.plainant ,   which   t'^.e  com.plaina:.t   desires   to  have     paid   into 
court,   he   notifies    the   defendant's   solicitor   that  he  will  make  a 
motion   to    that    effect.      At    the    time   and  plj.ce  m.entioned   in  sucli 
notice   an  oral  miOtion  is  made  dt.I  ar~u.ment  had.      If   the  Court 
jrants    tr.e  motion,    an  order  is    entered   in  accordance  iherev/ith  or 
such  an  order   as    t;  e  court   deems  proper  lender  the   circumstances. 

Another  m.ost   importsnt    interlocutory  proceeding  is   that   of 
granting  an   injunction   restrainin-   the    .^eferAv-nz   iron  doin,-  so^r.e 
particular  act  or  acts  which  will   do   irreparable   injury  to   t;  e 
complainant.      V»'hen   an   injunction  is   issued  durin-;-  the  pendency  of 
the' suit,    it    is   called   a  preliminary   injunction;    when  it    is  made 
a  part   of   the  final   decree   it   is  c..lled  a  finaJ   injunction.      '^iVhen 
the  bill  prays   for  an  injunction  it  will   oe   •::rr>-ited   if   the  court 
is  satisfied   that   the  plcdntiff   is  entitled   to    tliat   relief. 

The   injunction   should  be   served  on   the   defendant.      Service 
is  made   in  the   s  .ime  m^rxV.er   as   service  of   a  suopoena,   by   the   sher- 
iff,   v/ho  m^akes  his   return  upon   the  ori-.rinal  writ. 


EQ.UITY     PLI^ADI.TG     Aim     PP^^^CTICE.  16. 

Kn:PLICATION   TO  AlISWER. 

As   we  have   alreatl^^   said,    if   the  answer   is    such   that   the   com- 
plainrrxt    is   satisfied  that  ".le   can  obtain   the  relief      he  desires 
on    the   admissions  jruixde   t'rerein,    he   notices   the    cause   for  hearin;^ 
on   the  pleadings.      If,    however,    the   answer   controverts   the  facts 
charged   in   the  plaintiff's   oill,    or   set?   forth  new  facts  and  cir- 
cu-T.st-.nces,   v/liich   the  plaintiff    is  not   disposed   to   adrrdt,   he  files 
a   replication   to    the   defendant's   answer.      Forr;^.erly,    if  the   defend- 
ant's   answer   stated  new  fr-.cts,    in   opposition  to    those   alle.^ed   in 
the   oill,    the   coi-rrp  lain  ant   was   accustomed  to   reply  oy  a   special 
state^rient   of  ot'ier   facts,    not   before   charged.      This  produced  a  re- 
joinder  Dy   the  defendant.      A  sur-rejoinder  frequently  followed 
the   rejoinder,    &si6.  a  rebutter   tlie   sur-rejoinder,    arid   so  on  ;„3  long 
as   new  fs,cts   were    set  forth   by  one  party  and   denied  by   tJie   otl-,.er. 

I>1.ichi^an  Chancery  Rule   1?.   requires    the   replication   to    oe 
filed  within  fifteen   days  after  service  of   the  ansv/er.      Otherwise 
th.e  cause    shall   stand  for  heariir^  upon   oill   aiid  answer.      Tliat   rule 
also   provides   that    the   replicrtions  .nay  be  in  suDstance  a^   follov/s: 

"The   complainant  s.i'.ys    that,   notv/ithstandin;;  the   ansv/er  of   the 
defendsoit,   he  is   entitled   to   the  relief  prayed  for   in  his  bill  of 
complaint." 

Upon  the   coriplainant    filinj  a  replication  to    the   answer  the 
cause   is  at   issue    (Mich.   Rule   IS.) 

TUSTElOiTY. 

The   cause  being  at   is?ue,    by  the  filin.:;  of   a  replication,    the 
parties  inay  proceed  to    their  proofs  under   t'^e    rules   of   the  court 
for  the  purpose  of  estaolishin^  their    respective  contentions. 

There  have   been  within  the  past  few  years   such   iniportant  and 
radical   changes   in  thic-  part  of  chencery  practice   thut   we  will 
confine   our  attention  to   the  practice   in  this   state.      Similar 
chan^-^es  have  been  Tiode  in  other   states. 

Within  ten  days   after    the   c.:;.use   is  at   issue   either  pi;rty  .r.ay 
give  notice  and  have   the   testi-Tiony   taken  in  open  court.      If  neither 
party   so   elects,    the    testt.ony   shall,    without   furt".  er   order,    oe 
taken   before  a  circuit   court,   cormussioner ,   unless   th.e  parties    stip- 
ulate  to    te2::e   it    before   so;r.e   other  person  authorized   to  ai»ninister 
oaths.      T:  e   cniplainant  n-^ust  put   in  his  testi-T^ony  within   thirty 
days   after  the   ten  days  liinited   by  law  for    ,:ivin.j  notice   of   taking 
proofs   in  open   court.      The    defendant   then  h..s   forty  days  within 
which  he  must  pui,  in  his   testi-^ony.      The  co.>T\olainant  has  forty 
days  v/ithin  which  he  must  put   in  his   testiinony.      The   complain?jit. 

has   twenty  days   thereafter   in  which  he  may  put   in   rebutting  tes- 
timony.    Each  party  ir.ULst    "cive   fr.e  other  four  days'    notice   of  the 
ti.^e   aiid  place   of    tahin;;   testi::-ony.      The   time   for   tal-dng  testi;v-ony 
may  be  extended  by   the  court  upon  cause    sho\vn.      (Rule   14.) 

The   testimony   is  taken   orally.      The  questions  upon  dii-ect 
and  cross-exrjnination  are   asked  by  the  respective  solicitors   and 
the  Questions   and   answers    are  written  out   in   full   oy  tne   co;rjra.s- 
sioner.      If   any  cuestion  is   objected  to,    such  objection  is  ta-<en 


EQUIiY     PLEADriG     AIJB     PflACTICS.  17. 

dov/n  by   the  corarrdssioner.      The   conrr.issioner ,    hov/ever,    aoes  not 
rule  upon  the  objection,    but   taices    lo-mi   the   answer   as    thougli  no 
objection  had  been  .'nade.      The   testiraony  of   each  witness   is   read 
over  to   him  and  he   then   sigins   it. 

V/ithin  five  days    after   the   testiinony  is    conoluled,    the   com- 
missioner,   at   the  request   of   either  party,    returns   and  files   the 
testimony  and   the  exliioits  v/ith  the   re.r^ister.      The   testimony  is 
closed  when   the   time  for  taking  it  has   expired  exid  no   order  clos- 
inp;  proofs  need  be   entered.      (ilich.    Rule  14.) 

In  case  witnesses    reside   out  of   the   state  or  more   thaji   thirty 
miles   from  the   residence  of   the  comj-.dssioner ,    either  party  v/ishing 
to   exarrine   them  r^.y,    during  the   time   the  order  to   ta/:e  proofs   is 
in  force,    preser^t   a  petition  to    the  register,    statini^   t";e  naiTies 
and  residences   of   the  witnesses   and  of   tiie  persons  proposed  as 
comirdssioner ,    asicin  :  for    the   issuance  of  a  comjrdssion   to    take 
the   testLmony  of   such  v/itnesses.      The   adverse  party,    if  he  wishes, 
'^-B-y  join  in   sucIt  co.nunission. 

Porm.erly  all    tlie  testimony   taJcen   in  chancer^'  proceedings  v<'>,s 
upon  written  interrogatories,   but  at   the  present  tiiiie   it   is   only 
necessary  to    resort   to  v;ritten   interro^ratories   v;hen   the  v.dtnesses 
reside  out   of   the   sta,te.      The  interroi-ratories,    direct   and  cross, 
are   settled  by  the  comjrdssioner ,    the  practice   being  for   ti:ie   sol- 
icitor,  whose  witness   is   to  be   exarrdnevi ,    to    serve  upon  tlie  oppos- 
Ini  solicitor  a  copy  of   the  direct   interrogatories   and   a  notice 
o^the    time   and  place  of   their   nottlem.ent.     And   such  solicitor  may, 
at   such   tim:e   and  place,    have   cross   interrogatories   settled. 

Proof  havinj  oeen  closed  and    vie  testimony  taken,    filed   in 
t'le   court,    the  cause   is   ready  for  hearing  upon  pleadinj^s    and  proofs. 

Either  partii-  may  notice   t'je   cause  for  }iearing.      Such  notice 
must  he   in  writing  and   served  upon  f-.e  opposing;   solicitor. 

ISARIL'G  OF   lIlS!    CAUSa. 

Upon   the  hearin.~  complainant  opens    the  ar.-^p^'nent.      It   i?   usual 
for   the  court   to    request   the    solicitor  for   complainant   to   give  a 
statement   of    t}:e  case  m^.ds   by  the   bill   and  a  stateme^xt   of  the   tes- 
timony  sustaining   the  com.plainant '  s  contention,    and  then   to  call 
upon   the  solicitor  for   defendant   to  m-a-.:e   a  orief    statemeit   of  the 
defence,    as   sho'^Ti  oy  the  pleadings   and  proofs.     Yftien  the  court  has 
ootained   in  this   maimer   a  clear   conception  of  the    case   in   all   its 
bearings,    the   regular  argument   is  made  and   the  cause   submitted  to 
the  court.      At   the   time  the   cause  is   submitted,    or  on  some  other 
dav,    the  court   announces    its  decision.      This    iecision  is  frequently 
given  orally,    the   solicitors   Dein:^  present.      Sometimes   a  vn^itten 
memorandum  of   tlie  decision   is   r:ade   and  filed  by  the  court,    at   tr.e 
time  he  announces  his  decision,    cuid  so.::etimes    the   register  makes 
a  minute  of   the   decision  in  his  minute-cook.      Tiie  party  in  whose 
favor   the  decision   is  nade    tiien  prepares   a  draft  of  such   a   lecree 
as  he  thinks  he  is   entitled  to   in  accord8_nce  with   the   term.s   of   t}-.e 
decision,    and  serves   a  copy  upon   the  other   eolicitor,    v/ho   has    a 
right   to   xirouose  amendm.ents  to    it,    if  he  thinks  proper   so   to   ao. 
.--e  draft' and  rcnendjr.ents ,    i^  sJiy,    are   then   submitted   to    tne   court, 
and   the   solicitors   are  ^e;trd  upon   the   'Bettlement   t.'zereof. 


SQXJI'iY     PUilADIlTG      AlTD     PRACTICE.  18. 

Wien  the  decree  has  been   settled  it   is   entered  by  the  regis- 
ter upon  the  journal.      It    is  considered   a^,   entered  from  the   time 
it    is   settled  and   filed  with  the   register. 

A  DECIIES   III  3QuI--fY. 

Decrees   in  general   consist   of   tliree  parts: 

1.  Tiie  date   and   title. 

2.  The  recitals. 

3.  The   ordering  part;    to  v/hich  is    sometimes   added 

4.  The   declaratory  part.     Y/lien  this   Is.tter  part   is  made 
use  of,    it  generally  precedes   the  ordering  part. 

The  decree  co.imences  with    the  name  of  the   court   and  the  place 
wJiere  it   is   held,    the   term  at  v/hich  it   is  pronoimced  and  t   e   title 
of   the   cause.      It  v/as   the  practice   at   one   time   to   recite  at   length 
the  pleadings   and  evidence   in   the   cause,    but  now  the  decree  merely 
recites   the   substance   of   tlie  pleadings  and    the  facts  on  whichthe 
court  founds   its    judg/.-.ent.      After  the   recits-ls   come      the  ordering 
or  mandatory  part   of  the   decree,    containing  the   specified   direc- 
tions  o;f   the   court  upon   the  matters   before   it,    which,    it   is  obvious, 
2mist   depend  upon  tlie  nature  of    the  particular  case  w}iich   is   its 
subject,      'vvhen   t}ie   suit   seeks  a  declaration  of   the   right  »f  tlie 
parties,    the   ordering  part   of   the  decree   siioul.'  be  prefaced  ''oy 
such  declaration. 

RSCTIF/n^G  D3CRI3S. 

After   the   court  has   formally  annotaiced   its    decision  and  until 
the   decree  has   oeea   settled   and  entered,    either  party  feeling 
himself  aggrieved  may  riiove   the   court  for   a  re-ar^ument  of   the  cause 
or   that   certain  parts  of   the  decision   oe  m.odified. 

After   tjie  decree  h^as    oeen  settled  and  entered   and   before   it 
is   enrolled,    either  party  may  petition  the  court  for  a   re-hearing. 
The  petition  must    state  particularly  the  oojections   which  are   con- 
ceived  to   lie   against   the  decree,    that    the   court  iTiay  be  competent 
to   decide  upon   the  propriety  of  the  application;    and  if   the  v;hole 
decree   is  objected   to,    tiie   case  of  t]-.e  petitioner  and   tlie  decretal 
part  of   the   order   are   shortly   set  forth,    and  an   intiir.ation   is   given 
of   the  decree  which   the  petitioner   is  advised  ought   to   be   entered. 
If   a-vry  of   the  facts   stated   in   the  petition  do  not  appear  on   tiie 
records   of   the  court,    they  must    be   verified  by   ai'fidavit.      The  peti- 
tion for   re-"laearin,g  :nust    oe   accompanied  by  the  certificate  of  two 
counsel,    setting  forth  that   they  have   examined  the  case,    and   that 
in   their  opinion  th.e  decree   is   erroneous   for   tlie  reason?    stated. 
This  precaution  is   taKen   as   a  security   that   the  application  is 
not  made  for   the  purpose  of   delay  merely. 

APTSR  ei^.olli/S::tt. 

The  general   rule   is   t}iat   a    lecree   re^gularly  ootained   and 
enrolled  cannot  be   filtered   e;:cept  by  a  Bill   of  Review. 


ECiUITY     PI^ADIITG     PITD     PRACTICE.  19. 

APPI.ALS. 

There  is  usually  a   court   to   which   the  party  who  deems  himself 
as  -rieved   iiy  the   decree   of   the    court   in  which   tiie  suit    is   commenced, 
may   s.ppeal,    and   if   ootii  pt^rxies   desire,    both  ma.y  appeal.      In  this 
state   an   appeal   is   tal^en  from   the  Circuit  Court   in  Chancer^'  to  the 
Supreme  Court.      Ihis   is   a  purely   statutory  ri^lit ,    aiid   the  provi- 
sions  of   the    statute  must    be   strictly  complied  'Adth. 

ITotice   of  clai;;:  of  appeal    is  to  be  filed  with   the   register, 
togetjier  with  the    bond  provided  for  in   tiie   statute,    and  notice  that 
sin   appeal  has   oeen  taken   served  upon   the  opposite   solicitor. 
W}ien   the   appeal  has    oeen  perfected,    t::e   re,':;ister  transmits   t?ie 
records   to    the  Supreme  Court. 

In   t^-e  Suprene  Court  no   further  proofs   are   taken  s-id  the  cause 
is  heard  upon  tlie   sar.ie  pleadings   and  proofs   as  were  before   trie 
Circuit  Court,    when   it  made    th^e  final   order,    or   decree,    from  v/hich 
the  appeal  v/as   taken. 

I'he  practice  in  tlie  Supreme  Court  and  t].e  enforcement  of  a 
decree  we  shall  omit  and  close  our  suit  in  equity  at  this  sta^je 
in  the  proceedincs. 


tf**^^**^*  **  »  * 


EQUITY     PLi^ADIilG    .  Al®      PR^^CTICE.  20, 

C  H  A  P   T  2  E      II. 


TKS  PURPOSE  Ai'HD  OBX^CT   OP  PLil^ADIlTG. 
STATIi;i"G   CAUSL-   01  ACJIOIT. 

Courts   are  iefined  to    oe  pl-.ces  where   justioe   is   a'i:'.inisterGd. 
They  are   instituted  for   ti.  e  purpose  of   securin:   to   ev-ery  one   the 
ri.'^it   to   enjoy  life,    liberty  .vnd   the  pursuit   of  ]r-;.ppiness .      'rlhen 
0.  person  feels  hi.r.self   ajjrieved,    and  iie  cannot   -'therv/lse  have 
redress,   he  applies   to   some   judicial   tribunal   to   restore  to   hisi 
the   ri -ht   triat  has    oeen  witiij.eld,    or  to   ;j;ive  him  reparation  for 
the   injury  ::e  has    sustained.      Tr.e   courts   in  order  that   they  may 
administer   Justice  have  laid   dov/n  certain  rules   'v/VLich   the   suitor 
mi,ist   oonforn   to   when  he   applies   for   relief.      They  v/ill   not   inter- 
fere upon   the    oare   sur-;jestion   of   an   in, jury.      It  must   appear  from 
the   complaint   that    the   suitor   is   entitle!  to   re].ief   and  he  must, 
afterwards,    support   the  matters   set  up   in  the   application  oy  com- 
petent proof. 

The  disputations   of   the  parties   v/ere  at   first,    in   tl.e  lav/ 
courts,    delivered  orally  ajid   taken    io'iAn.!  oy   the   clerk.      If   the 
question   in  dispute   turned  upon   the  lav/  ^overninj;   the   case,    the 
partj'"  m.?iin^3    tihe  objection   appealed  to   t::e    court  and   t/.e   question 
was  decided  tiy  the   court.      If   the   dispute  v;as  over  a  question  of 
fact,    affirmed  on   one   side  a.nl  denied  on   the   other,    an  appeal   v/as 
made   to    the   country,    to   a  jury,    and  a  trial   v/as  had  before   a.  jury 
who     letenrtined  hy  -their   finding    the   ^rutl;    of   t':e  matter  in  contro- 
versy.     These   preliminary   disputations   of   the  parties  v/ere  called 
pleadings   and    tlie  point   in  dispute   the   issue.      After  a  time  plead- 
in,53    m    ohe  lav/  courts  were  made   in  v/rit  in/^,    and   they  were  in 
writing  in   tlie   chancery  courts  froi::  the   first. 

The  only  object   of  pleadings    is   to  prerent   the   re.al   question 
in  dispute   oetween   the  liti2a:its  freed  from  all   irrelevant   and 
immiaterial  miatter,    so   that    tiie  attention  of   t.Vie   court   or   jury  m.ay 
be   confined  wliolly  to    t'-e   simple  question  presented.      All   t:-e 
rules  of  pleadin,!^,   however   abstruce   and   complicated   they  m.ay 
appear,   have    ti.is   one  ooject   in  view.      And  all    tiiose   rules  when 
properly  understood  are   seen  to    oe   conducive   to   that   end.  ai'-d   are 
perfectly  intelli::;ible  when  referred  to    the  principle   a^ove  stated. 

Let  us  now  apply   these  principles   to   tJie   several   pleadings 
as    they  occur  on   the  part  of  the  plaintiff   and  defendant,    taking 
up   erch   separately:      Pirst,    v/e  ha.ve   t.e  plaintiff's    statement  of 
the   injury  and  his    application  for  redress.      Here   are   tv/o  points 
to  be  considered;    first,    the  nature  of  the  wron^^;   sustained  aiid 
how  it   is   to   oe   set  out   and,    second,    tiie  plaintiff's   ri^-ht    to   apply 
to   the  particular  court   and   the   fonn  of   trie   ^.pplication. 


JiQJJITf     PL^A-OPr- .   A^^ri)     pRf\CTICE.  21. 

First,    the   state:;ent  of  t"  e   injury.      "Wrongs,"    says  Blackstone 
(3  Com.    2.),    "convey   to  us   iui  ilea  merely  neo:ci,tive,    as    bein:^  noth- 
in,^,   else   but   ;;.  privation  of   a  ri^:ht."      Tl.e  plaintiff  must,    there- 
for,   in  his   application  for   reiress ,    set  out   the   rif-^ht   of  which 
he  has    oeen  deprived.      Tiiis   leads    to   t:ie   consideration  of   ri^lits, 
which   depend  wholly  upon   le::al   or  equita'Dle   relations,    established 
by  contract,    or,    the   law.      Purely  moral   obli-ations   are  not   enfor- 
ced  in   tj-e   courts.      All   equitable   ri-^lits    rest  for    their  foundc.tion 
upon   some   le.^al   iuzy  or  obli j:ation.      T::.e  plaintiff  r.iust,    therefore, 
in  his   stater.ent,    set   forth  clearly  the   relation  in  vi-:ich  he   stands 
to   t;-e   defer.dant   frora  wliich   the  ri -ht   flows   of  which  he   clair.:s  he 
has   oeen   deprived.      IIov.',    relations   let    in  three   separate   considera- 
tions:   first,    t;:e  parties  \vit2"    their   several    iisaoilities   and  lia- 
bilities   ill  It.w;    seccnd,    t'-^e   subject  rnatter,    or   contract,   with   trie 
circumsta.nces  under  which  it  wr^s  :nade;    and   third,    the  lejal  and 
equitable   ri.ghts    incident   to    thax   relationship.      It   is    because  of 
t]ie  iiifinite  vr.riety  of   relations" lip   that  parties   stand   to   each 
otlier   t"  at    courts  h.-.ve  found  it   necessary  to  maice  so  msuiy  and   such 
precise   rulos   for  preseatin:'^  the   simple   question  in  controversy 
to    tr;e   end   tJiat   such   question  inay  oe  ir^ade  plaii;  axid  intelligible 
an  1   t/.at   the  riic.tter  niay  be   brought    to   judgment  with  convenient 
certa.inty. 

■i"e   staterr.ent,    t";erefore,    consists   of   thre-'j  points; 

1.  It  must    set   forth  th.e   relation  between  tlie  parties. 

2.  The   ri.iit   accruing'   to   tiie  plaintiff  from  tliat   relation. 

3.  That   such  ri^ht  has   been  witliheld. 

Tlie  first   and  principal  point,    therefore,   with   the  plaintiff   is 
to    s'rovr  thJ.s   ri:";ht   aiid,   however   complicated  and  diffuse,    a  declara- 
tion  at   law,    or  a  oill   in  equity  may  oe,    if   it    is   a  c^ood  pleading, 
it    is   reducahle  to    three  propositions:      Tne   first  proposition 
states    a  rule   ox    la■-^',    that    a  cert.-.'.in   ri3ht    flows  from  a  certain 
relation;    the   second,    that    t}:e  parties   stsjid  in   that   relation;    and 
third,    that    t]\e  plaintiff  has   been  wrongfully  deprived  of   t;:e 
ri/5ht    comin';^   to  him  fro;;:   such   relation. 

The  first  proposition,    the   rule  of   law,    is  proved: 

1,  By  the  statute  law,  the  question  in  such  a  case  turning 
frequently  upon  the   construction  of   the   statute. 

2.  By  precedent,    former   decisions   of   the   court,    the   question 
turnin-^  upon   f.e   rule    to   oe   ;;j;athered  fromi  such  precedents, 

3.'  By  analogy,  when  the  rule  is  to  be  collected  from  deci- 
sions in  analagous  cases,  or,  determined  from  a  consideration  of 
t:-.e   fundamental  principles   of   equity  itself. 

The   second  proposition   is   foun:led   on   the   facts   of   the    case. 
The  facts   st3.ted  must   oe   sufficient   to    establish  the   relationship 
claim.ed  in  law,    and  their   truth  must   be  established.      Their   trutli 
is    a  question   of   fact,    f:ei£  sufficiency   is   a  question   of  law. 
The  adequacy  of   tlie~TacT3"~to   establish  the  relation   is  proved  by 
shcr/zinrr  that  under   the  law  a:id  precedent   they  are   sufficient   to 
establish   the  relation  claimed. 

The  third  proposition   is   a  question   of  fact. 

Next,    as   to    the  application  for   redres-s.      .^very  one  v^no  has 
suffered   a  wrong   is   prima   f.^cie   entitled   to   redress;    it    is  a  ;nr,xim 
that   tl:e  law  does  not    suffer  a  wron:^  without  a  ramedy.     But  a  court 


EQUITY     PLEADIJnTG     AITO     PRACTICE.  22. 

is  not    ojn   inn,    bouni  to    supply   every  applicant  with  refreshments. 
The  law  for   the   coxivenience   of   suitors   c,nd  tr:e  prompt   dispatch  of 
tiusiness  has    estaolishel  a  variety  of   courts   £ind   to    sor^'.e  of   these 
courts   it  has    jiven  e::clusive   jurisdiction  to   hear  and  deterrrdne 
a  certain  class   of  cases.      The  plaintiff,    tl-.erefore,   must  ma>:e  his 
application  to    that   court  havin_;  co-^izance   of    tlie  wron/;  coraplained 
of.      Again,  the  plaintiff  r.iust  have   a  ri.^^ht   to  bring  suit   and  the 
party   sued  must   not   be  exempt  from  such  suit.      The  plaintiff's 
application  m-ust   follow  the  forms  v/hich   the  courts   have   established 
as    beinj  best   calculated   to   attain  the   ends  of   justice   that   t:  e 
defen-dant  may  knov/  what   and  how  to  answer.      It  must    be  so  framed 
that   the  v/hole   question  involved  rjid  all   the  parties   in   interest 
may  be  brousiit  before   tae  court    so    that  cor.'plete   justice  miay  oe 
done   and  no  one  harassed  unreasonably.      And  lastly,    the   applica- 
tion mu-st   not   be   made   if  a  similar   application  is   pending  between 
the  SB2ne  parties   in  another  court   of  comoeteiit   jurisdiction. 


»»♦#♦»«#»»»»»♦•»*»»* 


SqUITY     PLLADIITG     AND     PRACTICE.  23. 

C  H  A  P    T    ■':;  R      III. 
PURPOSE  OF  ?L.-;AjjIjIG.      (Continued) 
STATING  DZFilNSE. 

Having  nov;  considered  what    it    is   necessary  for  the   plaintiff 
to   do   and  what  his   statement  of  his   cerise  of  action  must   contain, 
and   also  v/liat   are    the   requisites   of  his   application  for   redress, 
we   nov/  turn   to    the   defendant's   defence. 

The   defenliint's   defence  will   fall  under  one   of   the   follov/ing 
positions: 

1.  A  denial   of   tJie  le ';ality  of   the   co;nplainant 's   de.Tiand, 
admitting  the  truth  of   all  his   allegations. 

2.  Denying  tl^e   truth  of   the  cor.plaiiiant '  s   aver.r.ents   or,  some 
of   them,    which  are  essential    to  his   rirht   to   recover. 

3.  Stating  new  rviatter  on  his   owi   oehalf  which  will   avoid   the 
complainant's   right    to   recover   oy   showin^r;  that   either  he  never 
had   such  a  claim,    or   if  he  had   that   it  h.^    oeen  removed. 

The  second  defences   are   in   bar   and  ^o   to   the  merits   of   the 
controversy, 

4.  Denial  of  the   jurisdiction  of   the   court. 

5.  Denial   of   the  plaintiff's   capacity   to   oring  the   action. 

6.  Pointing  out   some   defect   in  the  proceedings. 
These  later  defences   are   in  abatement. 

Objections  to   the   application  lor   redress  must  "be  made, 
first,    that   is,    the   defendant  must   e:cliaust  his  pleas  in  abate.r.ent 
before  he  pleads   in  bar.      If  he  pleads   to    the  merits  he  v/ill  not 
oe  pesrmitted        e^fterwards   to  plead  in  abatement.      By  pleadinj   in 
oar  he  waives   all   objections  which   it    is  within  his  pov/er   to 
waive . 

1.  If   the  complainant  has   comruenced  his   suit    in  a  court 
which  has  not   authority  to   hear   it,    the  defendant  maiL-Object   for 
that    reason,   which  is   called  a  plea  to   the   jurisdiction. 

2.  The  defendant  rns.y  alle/^e   in   ubatament   of  t"  e  suit:      (a) 
some   legal   disability  on   the  part   of  the  plaintiff,    or,    (b)    some 
exemption  on   the  part   of   the  defendant,   v/'-.ich  sliields  him  from 
prosecution.      These   are  called  pleas   to    the  person. 

3.  If   there   is    any  defect   in  the  mode  or  form  of  proceeding 
in  consequence  of  which   the  merits   cannot    be   fully  passed  upon  by 
the  court,    as  when  there   is   a  misnomer,    or  want   of  parties,    or 
want   of  certainty  in  tiie   staten;ent   of    the   cause  of   action,    such- 
defect  may  be   taken  advantarre  of  by  plea  in  abatement.      The  rules 
require,   however,    in   this  class   of  objections   that,    if  the  f-^cts 
by  which   t}ie   error  co!r.plained  of  may  oe   cured,    are   within   the 
knowledge   of  the   defendant,   he  must   state   them,    give   the  plaintiff 
a  better  writ:      Thus,    if   there   is   a  misnoiner,   he  niv.st   set   forth 
the   correct   name,    or,    if  there   is   a  want   of  parties,    he  must 
point   out   who  has    oeen   omitted. 


I^QUITY     PLJ!:ADII^G     Al!D     P3ACTICS.  24. 

iText,    a?,   to    the   defence  upon   the  :nerits,    tlie  answer,    or  pleas 
m   oar.      Sinoe   every  cause  of   action  is  due   to    z'  e   deprivation  of 
some  duty,    or   ri.3l:it   flowing  from  sorrie   le-al    relation,    every  defence 
to   an  action  upon  the  merits  must  be,    either: 

1.  Confessing  the   relation  to   deny   t-;e   ri:^^t.      This    is   a 
general   issue   at  law,    called  a  demurrer. 

2.  Confessing  that   the   riglit   demanded  would  follow  from  the 
relation  assu:Tied,    to    ;leny,    ^-eaerally,    the  existence   of  the   rela- 
tio.:,    v/hich   is   the    general   issue   in   f?.ct,    or,    to  deny  some  parti- 
cular  allegation  upon  which  ti^e  whole   relation  exists. 

3.  Confessing  the  rifj;ht  &jid  relation  to  deny  the  suotraction, 
that  is,  denyin';  that  the  plaintix"f  has  oeen  deprived  of  any  ri-ht, 
has    suffered  any  v/rong,    or, 

4.  Confessiu ':   t'le    suotraction   to  give   somie  valid  reason   to 
excuse   t'.e  non-performance  of   tlie   duty.      The   two   latter   are   called 
special   pleas   in   oar, 

Ac^ain:    the  reason  cissiirned  in   excuse  !:.a.y  be   tv/o-fold,    in 
reference   to    the   tv/o  propositions  concerning   the  relation  aaid   the 
rit^lit.      First,    it  may  be   some  new  m^atter   to   invalidate  the  prima 
facie   relation   set   out   in  the   complaint;    or  secondly,    it  miay   oe 
some  nev/  riicitter   by  miearis   of  vfrAch,    supposing   the   relation   to    exist, 
yet   the   ri -ht   deprived  from  it   is   jone;    and  here  it   is  obvious   that 
the   rer,?on  c.lleg'.  d  must  be  of  new  ;;.atter;    for   if  tl:e   sa;.ie    st.^tement 
appeared  on   the  face  9f   the  coripla-int ,    the  defendant  mj.|jht   at  onoo 
deny   t're   ri^^jht;    w?iich,    as   observed  above,    would  be  a  demurifer,    or 
r^eneral   issue  in  law.      Relations  may   oe  considered  with   respect 
to    the  parties,    the   subject  matter,    and  the   incidents. 

1,  First,    t};en,    to   invalidate   the  relation,    the  new  matter 
may   shov;,    first,    that    the  parties   v/ere  incapacitated  from  contract- 
ing  the  relation,    or   are  inc-.pable   to   continue   it.      Secondly,    that 
the    subject  inatter  was  insufficient   or  ille:3al,    or  had  undergone 
some  alteration.      Thirdly,    that    the  right,   being  incidental,   had 
not   accrued. 

2.  Second,  the  new  matter  may  show  thiat  the  right,  thought 
once  existing,  is  barred  by  the  act  of  party;  by  the  act  of  law; 
or,    lastly,    oy   the   act   of   God,    or   unavoidable   cala:iiity. 

It   is   clear   that    to    constitute  a   sufficient  answer   to   any 
material   allegation  in   a  pleading,    the   adverse  party  must   either 
deny   the  allegation  y-ltogeth.er,    or  confess    tl.e  fact,    and   avoid   the 
interference,   viz.:    by   setting  up   some   nev;  m^atter  consistent   with 
such  allegation,    but  which,    if    true,    is   an   aiiswer   to   it.      If, 
however,    he   set   forxh  m.atter  inconsistent  with  the   allegation,   'ay 
way  of  avoidance,    this  will  not  be  sufficient,   without  a  direct 
denial   of   the   allegation.      And   this  for   two   reasons;    first,   because 
_s    the  inconsistent  m-.tter   is   in  effect   a  different   statement, 
Doth    statem.ents  iTiay  relate    to   distinct   subjects   and  so   oe   both 
true;    and,    second,    such  -ienial   avoids  prolixity,    oy  tendering  an 
issue   at  once,    a.:d  gives   the  party  an  opportunity   to  prove  his 

alleviations. 

The   immediate  use  and   lesign  of  pleadin-    is   the  fonr.ation  of 
an  issue,    which  Lord  Coke  defines   to  be   "a  single,    certain,    and 
m.aterial  point,    issuing  out  of   the  allegation3   or  pleas  of  the 


ct 


EQUITY  PU-]ADIHG  AIX     PRACTICE.  25. 

plaintifi-  and  defendant,  consisting  re)=^larly  upon  an  aiT irmative 
and  negative."  As  soon  as  this  object  is  effected,  therefore,  in 
such  manner  as  to  answer  the  whole  of  tl.e  precedent  pleading,  tlie 
matter  is  brought  to  a  close;  and  tlie  party  who  first  arrives  at 
that  point  is  said  to  tender  an  issi:e;  an!  concludes  oy   pra^'ing 
the  judg;-;;ent  of  tlie  court,  if  it  be  a  question  of  law;  or  if  it 
be  a  matter  of  fact,  he  concluies  to  t'->e  oou.try,  i.  e.,  he   demands 
a  trial  by  jury;  for  if  it  be  a  disputed  record,  he  appeals  to  the 
record  itself,  and  the  adverse  party  joins  issue  'oy   doin  -  the  like. 
On  the  other  hand,  w}ien  a  pleadin-  introduce?  nevf  matter  oy   way  of 
avoidance  or  excuse,  it  only  concludes  with  a  verification,  because 
such  new  matter  may  be  contested  as  to  its  vlaiiity  in  law  or  its 
truth  in  fact,  or  the  otlier  side  :i:a.y   adduce  new  reasons  to  inval- 
idate it  in  turn.   In  this  latter  case,  the  pleadings  must  advance 
one  step  further. 

Having  taicen  this  view,  we  sv.all  now  proceed  to  the  plaintiff's 
reply  to  the  defendant's  plea,  called  the  replication.  The  re'oli- 
cation  bein-:  an  answer  to  t'le  plea,  we  shall  consider  it  'with 
reference  to  the  four  modes  of  defence  already  enuinerated.   It  is 
manifest  that  the  first  two  constitute  issues,  tb.ere  bein^  an  af- 
filiation on  one  side,  met  by  a  denial  on  the  otlier.   The  replica- 
tion in  these  ceases,  therefore,  only  joins  issue. 

The  third  mode  of  defence,  namely,  the  denial  of  subtraction 
is  alv/ays  put  affirmatively,  by  averring  a  perform.ance;  because 
tills  is  a  proposition  which  admits  of  lispute  both  in  law  and  in 
fact,  and,  therefore,  the  opposite  side  should   have  an  opportun- 
ity of  answering  it,  wiiich  is  doiie  by  assi.'jnin'i  a  particular  breach. 
This  last  m.entioned  replication  oei.rs  a  stron{;  analo^^'  to  that 
which  is  called  a  "novel  assignment,"  viz.:  v/V-ere  t:ie  complaint 
not  having  been  set  out  with  sufficient  precision,  it  oecomes  ne- 
cessary fromi  the  evasiveness  of  t:-:e  plea,  to  re-sign  the  cause 
of  action  v/ith  freah  particulars. 

It  is,  however,  the  excusing  non-perfonnance  (being  the  fourth 
mode  of  defence)  which  opens  the  v/idest  range  for  replication. 
The  statem.ent  of  excuse  may,  li-<e  the  statement  of  the  right,  be 
reduced  to  two  propositions,  and  of  a  similar  n<..ture.   The  first 
proposition  is — 

That  certain  incidents  superadded  to  the  admitted  relation, 
operate  as  a  legal  discharge  to  Vne   otherwise  resulting  liaoility. 

The  second — That  such  incidents  affect  the  acknowledged  rela- 

tiono 

Therefore,  That  the  defendant  is  discharged  from  liaoilioy. 

I'lie  first  proposition  here  is  a  questio.:  of  lav;,  arid  m.a^''  oe 
met  by  demurrer;  the  second  is  a  question  of  fact,  and  m^y  be 
denied  or  confessed,  ani  avoided  by  a  new  Siiowing;  or  traversed, 
in  a  ma,nner  precisely  simdlar  to  that  v4iich  we  :.ave  descrioed  at 
large,  when  treating  of  pleas  in  bar. 

To  the  replication  the  defendant  must  again  rejoin,  by  ta--cing 
issue  or  tendering  issue,  or  adding  new  matter  of  avoidance;  and 
so  on,  until  the  parties  arrive  at  tlie  true  and  simple  point  oi 
controversy. 

»♦«»»»»»»»*•»♦♦«» 


EQUITY     PLEADIITG     AiJD      PRACTICE, 


26. 


C  H  A  P  T  3  R  IV. 


EQUITY  PLEADIIIG  AM)  PRACTICE. 


Chaxicery  Pleadings  are  the  -frrltten   allegations  of  the  respect- 
ive parties;  on  the  part  of  the  complainant  the  bill  of  complaint 
and  the  replication  to  the  defendant's  defence,  v/hen  necessary; 
and  on  the  part  of  tlie  defendajit,  the  demurrer,  plea  or  answer. 

The  practice  of  the  court  of  equity,  are  the  various  steps 
taken  "by  th*  several  parties  under  the  rules  adopted  by  the  court, 
in  the  suit  from  its  coi^raen cement  to  its  final  determination.   In 
theory  and  upon  principle,  pleadings  and  practice  are  entirely 
separate  and  distinct,  and  t}iat  fa.ct  should  be  constantly  kept  in 
mind,  but  since,  in  the  conduct  of  a  suit,  there  is  necessarily 
a  step  taicen  in  pleading  followed  oy   one  in  practice^  it  will  be 
more  convenient  and  satisfactory  to  consider  pleadings  and  practice 
together,  as  questions  touching  the  one  or  the  other  naturally 
arise  in  the  conduct  of  a  suit. 

The  follov;ing  is  an  old  definition  of  a  bill  in   equity 
(Cursus  Cancellarae  36) :   "A  bill  in  equity  is  in  the  nature  of  a 
declaration  at  common  lav/,  v;herein  the  complainant  is  to  set  forth 
t];e  circumstances  of  his  case  for  some  fraud,  force,  or  injury 
done  him,  praying  relief  of  the  court,  for  that  he  has  no  remedy 
by  the  com^non  Ism;    and  also  process  of  subpoena  against  tho  defend- 
ant to  compel  him  to  answer  the  charge  of  the  bill."   We  have 
already  called  attention  to  the  fact  that  in  setting  forth  the 
wrong  that  has  been  done  him  the  plaintiff  does  no  more  than  to 
show  that  he  has  been  deprived  of  a  certain  right,  which  belongs 
to  him.  by  virtue  of  certain  relations  that  exist:  that  rights  are 
incident  to  relations  and  that  to  prove  the  rij^ht  you  must  show 
that  the  relation  to  which  the  right  is  incident  exists.   Rela- 
tions again  must  be  considered  with  reference: 

1.  To  tiie  parties  with  their  several  li:-bilities  and  disabil- 
ities; 

2.  The  subject  matter  of  the  contract,  the  circumstajices  under 
which  it  was  executed  and  the  nature  of  the  property  in  litigation; 

and  lastly. 

The  legal   and  equitable   incidents,    rigiits,    tlie  withholding 
of  YSiich  is   the  cause  of  complaint. 

In  speaking  of   relations  Lube   says:      "Relations  may  be  divided 
into  primary  or  original--secondary  or  derivative--arid  collateral. 
The   first   are   those  iirhich  subsist  betv/een   tlie   original   parties; 

.A   c-ro   such  as   are   derived   therefrom.,    either   by  the  trans- 


mission  of   interest,    or  the   transfer  of  title  or  liability.      Thus 
there   is   a  primary  relation  between   the  m.ortgagor  and  mortgagee; 
but   if 
arises   a  nev/  or   secondary 


is   a  primary  .^        ^        ^        x- 

the  mortgagor  assigns  his    equity  of   redem.ption, 

relation   between   the  mortgagee  and   tne 


there   tiien 


EQUITY  PLEADING  AlW     PRACTICE.  27. 

assignee  of  the  equity.   A  collateral  relation  is  that  which  exists 
oetween  two  or  more  derivative  parties." 

"The  original  relation  ma^^  arise,  either,  Ist,  out  of  a 
specific  contract,  the  incidents  of  w^ioi  rnust  depend  upon  the 
terms  of  agreement,  as  in  those  cases  where  a  specific  perf onr.ance 
is  sought  to  be  enforced;  or,  2d,  the  relation  :nay  oe   sucii  as 
though  arising  from  contract  between  the  parties,  is  nevertheless 
recognised  and  ascertained  by  the  law,  which  attaches  to  it  certain 
essential  incidents  and  inrredients — such  as  the  relation  of  part- 
nership, or  mortgagor  and  mortgagee,  and  the  like;  or,  3d,  it  may 
be  produced  by   the  act  of  a  tliird  person,  as  in  the  relation  of 
executor  and  le-jatee;  or,  4th,  it  may  arise  by  the  operation  of 
law,  as,  for  ex3jnple,  the  relation  between  tenant  in  dower  and 
heir  at  law," 

"In  the  first  instance,  as  the  nature  of  the  relation  is  to 
be  collected  Troni  the  v/ords  of  tlie  contract,  if  the  agreement  be 
in  writing,  it  must  in  general  be  set  out  veroatim  in  Vne   bill; 
if  not  in  writing,  then  such  collateral  circuiistances  inust  be 
stated  as  raise  a  strong  presamption  in  favor  of  its  existence. 
On  this  point  of  the  specific  performance  of  parol  agreements, 
various  rules  have  "oeen   laid  dovm  in  equity,  with  which  the  student 
should  make  himself  acquainted,  in  order  to  frame  his  bill  in 
cases  of  this  nature.   In  the  statement  of  specific  coiitracts,  ti:e 
agreement  must  also  be  shown  to  oe  of  such  a  kind  as  not  to  milit- 
ate with  general  policy,  and  that  th.e  stipulations  contained  in  it 
are  such  as  a  court  of  equity  ougjit  in  conscience  to  enforce.  The 
circ\imstajaces  lender  which  the  agreement  was  made,  form  therefore, 
in  most  instances,  a  m.aterial  part  of  the   statem.snt;  and  every 
fact  should  be  set  out,  by  way  of  inducemient,  tending  to  show  that 
the  consideration  was  valid  and  the  terms  fair  and  equitable;  for 
it  is  a  mixim,  'that  he  t/iat  would  have  equity  should  do  equity.'" 

In  tlie  second  case  above  noticed,  v/nere  the  relation  is  one 
recognized  by  law7  all  the  legal  requisites  to  form  such  relation 
ind  the  liabilities  resulting  from  it,  should  oe  v/ell  understood, 
that  the  draftsman  ma;y   be  able  to  bring  the  case  in  the  bill  with- 
in the  meaning  of  the  law,  and  show  such  a  breach  as  constitutes 
an  injury  cognizable  in  equity.   As  this  kind  of  relation  is  fo\inded 
in  like  manner  as  the  former,  on  the  contract  of  tr.e  parties,  it 
will  be  subject  to  the  same  rules  with  regard  to  the  equity  of 
consideration  and  origin. 

The  sao-ie  observations  will  apply  to  the  3d  and  4th  classes 
above  enamerated,  with  tiiis  additional  ramark--that  all  the  cir- 
cumstances th^t  led  to  the  existing  relation,  must  be  succintly 
alleged  by  way  of  preamble,  both  for  the  advantage  of  clearness 
of  statement,  and  also  in  order  to  deduco  the  complainant's  title. 

This  last  is  essential  to  every  bill,  and  in  general,  it  is 
to  be  remarked,  there  are  four  things  indispensably  requisite  to 
be  shown  in  the  stating  part,  namely: 

1.  The  complainant's  interest  in  the  thing  demanded. 

I.'Lichaux  V.  Grove,  2  Alk,  210.  _ 

2.  The  complainant's  riglit  to  oring  suit. 

Sackville  v.  />ylev/orth,  1  Vern.  105. 


EQUITY     PL2ADnTG     AICD     PRACTICE*  28. 

3.  The  defendant's   interest. 

Stewart  v.  East  India  Co.,  2  Yern,  330. 

4.  The  defendant's  liability,  since  there  niust  be  both 
liability  and  interest,  and  t'.ere  may  be  one  without  tiie  other. 

Crossing  v.  Honor,  1  Vern,  180. 

Thus,  an  executor,  before  he  has  proved  the  will,  has  an 
interest  in  the  testator's  chattels,  but  not  such  as  to  give  him 
a  title  to  sue;  so  also  an  assignee  has  an  interest  in  the  thing 
assi;i;ned,  although  not  liable  to  be  sued  for  breach  of  covenant, 
unless  such  covenant  runs  with  the  land. 

IP.  Wm.  172 J  176, 
^ In  deducing  the  title  in  the  third  class  of  original  relations, 
it  will  be  seen  that  such  a  preamble  is  necessary  as  will  show- 
that  the  person  creating  the  relation  had  the  power  to  do  so, 
whether  by  law  or  oy   express  power  in  a  deed.   In  the  first  case 
the  capacity  is  all  that  need  ce  stated — as,  for  esample, 
"that  the  testator  was,  at  the  time  of  making  iiis  will,  and  at 
his  death,  seized  of  or  entitled  to  freehold  estate,  and  possessed 
of  personal  property;  iai±   being  of  sound  and  TTsposing  mind,  made 
and  published  his  will,  with  the  usual  fom-.alities."  V/ith  regard 
to  the  execution  of  a  power  crested  ^oy   deed,  it  v/ill  in  general  ce 
requisite  to  set  out  the  power  in  hoec  verba,  since  a  question 
may  turn  on  its  extent  or   validity;  and  if  the  latter  oe  likely 
to  be  contested,  the  preamble  should  go  back  to  the  original  of 
the  instrument  containing  ti:e  power. 

With  respect  to  relations  arising  by  operation  of  law,  we 
need  only  observe  that  the  progress  of  the  operation  should  be 
traced  from,  the  prior  relation  to  its  suosequent  effect,  and  the 
circumstances  must  be  shown  to  oe  such  as  that  the  legal  results 
necessarily  ensue. 

The  relation  having  been  clearly  set  forth,  then  follows  the 
statement  of  the  wrong  which  the  plaintiff  has  suffered,  which  is 
no  m.ore  nor  less  than  tr:e  neglect  or  refusal  of  the  defendant  to 
perform  his  legal  duty  to  f-e  plaintiff,  or  v;hen  the  situation  of 
thp  parties  is  such,  from  fraud,  accident  or  any  other  cause  that 
maiiifest  wrong  or  irreparable  injury  v;ill  result  unless  the  court 
of  equity  interposes. 


ti**************  *• 


EQUITY     PLEADIITG     MD     PRACTICE.  29 

CHAPTER     V. 


Vrao  likY  SUE   IN  EQUITY. 

All  bodies  politic  and  corporate  auid  all  persons  of  full  age 
and  of  sound  mind,  not  laboring  under  some  special  disaoility  may 
exiiibit   their  "bill   in  equity. 

Story  Eq.   PI.    §    50. 
T"ie  govern-'nent,    state  or  national,   may  brin^  suit   to    enCorce 
its   rights  and  interests.      V/lien   tjie   ri^lit   to  be   enforced   is  public 
but  belonj^s   to   some   individual    the   suit   is  usually  brought,    although 
not  necessarily,    oy  the  Attorney  General,    at   the  relation  of   such 
private  percon,    v/ho    is  recrarded   as   ti^e  real  plaintiff  and  he  is 
responsible   for  costs. 

Strickland  v.    A'cldon,   L.   R.    28  Ch.   Div.  ,    425. 
Burbank  v.   Burbank,    15?,  Mass.,    254. 
U,    S.   V.    San  Jacinto  3cc.    Co.,    125  U.    S.,    273. 
An  alien   sovereirrpi  or   ^.^ovem.-.ent,    forei.;n  corporations, 
either  private  or  municipal,   2nay  sue   in  equity. 

King  of  Prussia  v.    Xrupper,    22  Mo.,    550, 

"  "  "  V.  "  Cas.   Eq.   PI.   &  Pr.    3. 

Silver  Lake  Bk.    v.   ivforth,    4  Johns   Ch.  ,    370, 
B'k.    of   Scotland  v.   Ker,    8   Sim.,    46. 
The   incapacity  wliich  may  disquolify  a  person  from  orinr^in^ 
suit  m^y  either  be   absolute  or  partial.      It   is   aosolute  when   it 
wholly  disaoles   the  party  from  sueino;;    it   is  partial,    when  it  dis- 
ables him  fro..:   brinr^in-];   suit  without   the   aid  of  a  second  person. 
At   comumon  law  tl:  e   absolute    disicbilities  were  outlawry,    excommunica- 
tion,   attainder  and  aliena,'je  combined  v/ith  the   character   of   enemj"-. 
Bell  V,    Chapm.an,    10   Jolins . ,    133. 
"        V.  "  Gas.  EC.   PI.   Sc  Pr.,    1. 

Married  v;omen   at   common   law,    infants,    idiots,    lu;iatics   and 
other  persons  un.'ler  guardianship,    such  as   spendthrifts   and  drunk- 
ards  are  partially  incapacitated. 

In  most   of   tlie  states   tlie  comraon  lav;  disability  of  married 
women  has  been   removed   oy  statute   and  a  matried  woman   is   einpowered 
to  hold  property,    contractwitli   reference  to   tiie   same  and  sue  and 
be    sued  as   though  she  were  a  f emjne   sole. 

The   infant  must  bring   suit  by  his  next   friend,    wh.o   is   supposed 
to  be  his  nearest    relative   and  one  who  has  .-lO  personal   interest   in 
the   suit.      The  next   friend   is  liable  for   costs  and  the  court  will 
in  every  case  protect   the   estate  of   the   infant  when  the  suit  has 
been   instituted  improperly. 

Jarvis   v.      Crosier,    93  Fed.    Rep.,    753. 

"  V.  "  Cas.   Eq.   PI.    3c  Pr.  ,    7. 

Vi/aring  v.    Crone,    2  Paige,    79. 

"        V.         "  Cas.   Eq.   PI.    &  Pr.  ,    11. 


i;qUITY  PLEADING  AI©  PRACTICE.  30. 

If  a  suit  is  commenced  by  an  infant,  the  defendant  may  refuse 
to  answer.  But  the  prcdeedin.^s  are  not  void,  but  voidable  and  the 
court  will  appoint  a  next  friend  for  the  infant  upon  request. 
Bartlett  v.  Batt::,  14  Ga.  ,  539. 

"     V.    "     Gas.  Zq.    PI.  &   Pr.,  18. 
When  a  suit  is  conmenced  against  an  infant,  process  is  served 
upon  the  infant  but  no  further  steps  can  be  tc.ken  until  a  guardian 
ad  litem  has  been  appointed  by  the  court.   In  metkin-^  such  appoint- 
ments  the  Court  wil]  consult  the  interests  of  its  ward,  the  infant, 
and  usually  will  not  appoint  a  person  named  by  the  plaintiff.   It 
is  the  duty  of  the  ;5uardi£in  to  be  diligent  in  his  defence  of 
the  infant's  rights  and  he  will  be  liable  to  the  infant  for  any 
daniages  due  to  his  negligence  in  that  regard. 

Knickerbocker  v.  DePwrest,  2  Pai^e,  304. 

"         V.     "     Cas.  Sq.  PI  &  Pr. ,  15. 
.■Enos  V.  Capps,  12  111.,  255. 

"   V.    "    Cas.  Eq.  PI.  &  Pr.  ,  17. 
Johjison  V.  Water]:ouse,  152  Mass.,  585. 

"    V.      "      Cas.  2q.  PI.  &  Pr.,  20. 
McDermott  v.  Thompson,  29  Pla. ,  299. 

"     V,     ••      Car.  Jq.  PI.  &  Pr.  ,  23. 
At  common  law  tie  crown  had  charge  of  idiots  and  lijnatics,  suid 
comrriittees  were  appointed  to  take  care  of  those  who  had  been  found 
to  belon-!-  to  either  class.   In  some  of  the  states  coramittees  are 
still  appointed  in  this  class  of  cases,  but  generally  in  this 
country  a  guardian  is  appointed  by  the  proper  court  to  care  for 
these  classes  of  unf ortiiiiates.   The  idiot  or  liinatic  is  represented 
in  court  by  his  committee  or  guardian  as  the  case  may  be. 

As  a  general  rule  a  suit  cannot  be  commenced  by  aji  idiot  or 
lunatic  hy   his  next  friend,  but  by  his  committee.   If,  however,  it 
is  necessary  to  institute  such  a  suit  to  preserve  the  estate  of 
the  incom.petent ,  the   Court  will  as3Lii.ie  jurisdiction  for  that  pur- 
pose and  xuitil  a  coirmittee  caii  be  appointed. 

Dorsheimer  v.  Eoorbank,  18  iT.  J.  Eq.,  438. 

"      V.     "      Cas.  Zq,   PI,  &  Pr.,  25. 
Rough^an  v.  Morris,  37  111.  App.,  642. 

"     V.    "      Cas.  Eq.  PI.  &Pr.,  26. 
As  a  general  rule,  any  person  wjio  may  sue  ian  be  made  a 
defendant.   To  this  rule,  however,  there  is  this  important  excep- 
tion, the  state  m.sy  not  be  made  a  defendant  without  its  consent. 
Story  Eq.  PI.  §§  67,  68,  69. 
The  Davis,  10  V/all,  153. 
Car  V.  U.  S.,  98  U.  S.,  433. 


EQUI'IY     PLSADnia     Aim     PRACTICE.     ,  •         31, 

CHAPTSFv     VI. 


PARTIES   TO    THS   SUIT. 

It   is  necessary,    first   of  all,    for   the  pleader   to   determine 
what  persons  he  will  make  parties    to   the   suit. 

It   is   a  rule   of  law,    recognized   by  all   courts,    that  no  one's 
rights,    either  of  person   or  property,    shall   be   adjudicated  unless 
he   is  present  in  court.     Every  one   is   entitled  to    oe  heard,    to 
have  his  day  in  court.      It   follows,    therefore,   from  this    rule 
that   every  person   a^^ainst      «7ho:u  the  pleader  desires  to   obtain  a 
personal   decree,    that   is,    a  decree  requiring  him  to   do  or  refrain 
from  doing   some  particular  act,   must    oe  made  a  party.      And  if  such 
a  person  is   omitted  the  omission   is   a  fatal   defect. 

Chadbourne  v.    Coe,    10  U.    S.   A.pp.  ,    73. 

"  V.      "        Gas.   ^q.   PI.    &Pr.,    32. 

Another   rule,   not  as  mandatory  as   the   first   requires    triat   all 
persons  who  have   an   interest   in   the  controversy   shall   be  made 
parties   in  order   that  one   suit  r.iay  end   the  litigation  and  put   at 
rest   as  far  as  possible  the   controversy  in  all   its   ramifications. 
Goir.bining  these  two   i*ules  we  have   the   general   rule  as   to    the  proper 
parties   to   a  suit   in  equity.      "All  persons  having  an  interest   in 
the   subject   and  object  of   the*  suit,    said   all  persons   against  whom 
relief  must    be  obtained  in  order   to    accomplish  the  object   of  tlie 
suit,   must   be  msjde  parties." 

Stevenson  v.    Austen,    3  !..et.,    474,    480. 

Williams   v.   Bankhead,    19   Wal.,    563. 

Brown  V.    Circuit   Judge,    75  ]'ich.,    274. 
The  parties   to    a  suit    in  equity  are   styled  plaintiffs   and 
defendants   as   at  law,    although  it   is  usu^l    to   designate   tr.e  plain- 
tiff  as   complainant,    but   while   at   law  the   ir.terests   of   all   the 
plaintiffs   is   adverse   to    that   of   all    the   defendants,    in  equity 
the   interest   of   the  party  does  not   determine   tiie  question  as   to 
whether  he   is  plaintiff  or   defendant.      It   frequently  luappens  t:-'at 
some  of   the   defendants   to   a   suit  have  interests  v/hich  are   identical 
witli  those  of   some  of   the  plaintiffs.      It   is  desiraole   that  all 
the  persons  having  interests   that  will  be  eiffected   in  the   same 
manner   should  be   arranged  on   the   same   aide,   but   it   is  far  from 
necessary,    and  if   any  person  whose  natural  position   is   among   the 
plaintiffs    refuses   to   so   appear  he  can  be  m.ade   a  defendant,    and 
the  fact    that  he   is  a  defendant   will  not   affect  his   rights.      The 
court   in   ascertaining  and  detenraning   the   rig}its   and  interests   of 
the   several  parties   to   the   controversy  does   so  without   considering 
at  all    the  fact  as   to  wJiether  tliey  are  plaintiffs   or  defendants. 

Center  v.   Dawson,    2  Bland   264. 

Fawkes  v.   Pratt,    1  Pere  Wm. ,    593. 

Bedford  v.   Leigh,    1  Dickens,    707. 


EQ,IJITY     PIZADING      AiJD     PHACTIC?J.  32. 

"All  persons  h&.vin-  an  interest   in   the   subject   matter  of   the 
suit"    refers   to   those  havinr  an  interest  which  v/ill   oe,    or  .Ttay  be, 
affected   'oy   the  decree   rendered. 

Prrties  to  a  suit  in  equity  are  classified  as  formal,  proper 
or   necessary  pjnd   indesp  en  sable,  

A  fonnal  p3.rty  is~one  /,ho  has  no  interest  in  the  controversy 
between  the  plaintiffs  and  defeniants,  but  who  hp.s  an  interest  in 
the   sv-bject  matter  which    can  be   uljusted   in  th.e   sr.it. 

A  proper  or  necessa.ry  party  is  one  v/ho  has    such  an   interest 
in  the   suit    that  he  should   oe  riiade   a  party  to    enable   the   court   to 
adjust   all    the   ri^/ts   involved. 

An   indispensable  party   is    one  w'lose   interests  are   such   that 
a  decree   cannot   be  riiade   without   affectin?;   them. 

Chadbourn  v.    ,    10  U.    S.   Ap'O.,    78. 

"     V.     "    Cr.s.  hq.  PI.  3:  Pr.,  32. 

The  distinction  oetween  a.:  ir.terest  in  the  suit  :xid   sui  inter- 
est in  the  subject  r.'.atter  of  the  suit  riist  oe   borne  in  ;riind. 
One  may  have  eui  interest  in  the  subject  niatter  of  the  suit  and  have 
no  interest  in  f-e  suit;  but  having  an  interest  in  the  suit  pre- 
supposes an  interest  in  the  subject  matter. 

ifou  must,  in  determining;  who   ought  to  oe  made  parties  to  a 
particular  suit,  ascertain  first,  who  i.re  interested  in  th.e  suo- 
jec'o  matter,  eazl   secondly,  w-ich  of  tho -e  so  interested  have 
interests  that  will  be  affected  by  the  decree  of  t}ie  Court.   The 
latter  are  necessary  parties  an:i  ou:;ht  to  be  made  parties,  and  if 
there  interests  will  necessarily  oe  affected,  t?;:ey  are  indispen- 
sable parties.   The  former,  if  their  interests  cannot  be  affected 
by  the  decree  should  not  be  made  p5.rties  aiid  if  th6y  are  mi..de 
parties  th.ere  will  be  a  misjoinder.   ?or  instance,  if  a  oill  is 
filed  to  foreclose  a  second  mortgage  And  the  first  mort;;;a,5e  is 
due,  the  first  mortgage  may  oe  r;i£>.de  a  party  at  the  option  of  the 
complainant;  if  t'le  mort.'^age  is  not  due  he  may  not  be  made  a  party. 
Chadborne  v.  Coe,  Gas.  F.o.   PI.  &   Pr.,  32. 

VvTien  the  pleader  is  in  doubt  as  to  wr;ether  or  not  a  partic- 
ular person  should  be  m.ade  a  party,  it  is  advisable  to  oinit  him, 
since  ii  it  Siiould  be  found  afterwards  that  're   is  a  necessary 
party  he  m.ay  be  added.   And  if  such  a  person  is  r^^de  a  party  in 
the  first  instajice,  .T-alve  him  a  pr.rty  defendant  rattier  than  com^- 
plainant.   When  parties  are  improperly  joined  as  complainants, 
the  misjoinder  is  often  fatal,  but  v/hen  there  has  oeen  a  misjoin- 
der of  defendants,  the  suit  will  usually  oe  dismissed  as  to  those 
v/ho  are  not  proper  parties  and  proceed  as  to  th.e  others. 
Daniel  Ch.  Pr. ,  Chap.  5. 
Fulham  v.  McCarthy,  1  H.  L.  Cc^s.,  703. 

When  it  appears  that  one  or  more  who  of  ri.dit  ou:jit  to  be 
made  parties,  are  out  of  the  jurisdiction  of  the  court,  or  that 
making  them  parties  would  oust  the  court  of  jurisdiction,  the 
court'may  proceed  without  their  presence,  provided  the  interests 
of  those  made  parties  r.re  such  •  that  the  controversy  can  be  satis- 
factorily determined  as  to  them,  without  prejudicing  the  ri.giits 
of  those  not  miade  parties. 

Mulligan  v.  ilelledge,  3  Cranch,  220. 
Banh  v.  Campbell,  14  Wall.,  07. 
Story  V.  Livingstone,  13  Pet.,  359. 


^q}JT£Y     PL:3ADIiJG  AITD  PKaCTICE.  33. 

And  7:hen   the  perties  on  either  side  are  very  numerous,  and 
cannot,  without  inconvenience  anl   del^ay,  be  all  orou^.t  in  t^-e 
suit  may  proceed  if  all  the  adverse  interests  are  sufficiently 
represented  oy  the  parties  before  the  court. 

Mandeville  v.  P.i.^-^s,  2  Pet., '432. 
Willia-T-s  V.  3an:cl-:ead,  19  V^all.  ,  563. 

"When  proper  parties  are  not  .':ade  parties  to  tl^e  oill,  ti-.e 
reason  for  not  -^Takinc  theiT.  parties  should  oe  set  forth,  because 
if  their  interests  are  such  that  in  the  opinion  of  the  Court  they 
are  indispensable  parties  tae  Dill  will  oe   dismissed  unless  they 
are  added  and  service  hai  upon  them. 

Riddle  v.  Mandeville,  5  CrsJich,  322. 
Cassidy  v.  ShLr.in,  122  l^ass.,  406. 

The  parties  defended  .nust  be  designated  in  the  bill  and  pro- 
cess prayed  for  against  them, 

Hoyle  V.  Moore,  4  Ind.  £q. ,  175. 

V.    "     Cas.  Eq.  ?1.  ri  Pr.  ,  5o. 

'OTiere  the  subject  ratter  of  the  controversy  belon-s  to  a  vol- 
untary society,  unincorporated,  V  e   complainaiits  inust  exl.ibit 
their  bill  as  individuals  and  not  as  a  corporation. 
Lloyd  V.  Loarin^,  6  Ves.,  773. 

"    V.    "      C..S.  Zq.    x'l.  Sc  Pr.,  44. 

For  the  purpose  of  illustratin:-  the  rule  as  to  parties, 
formal,  necessarj'-  and  indispensable,  let  us  suppose  that  on  July 
1,  1900  A.  is  t/ e  ov/ner  of  certain  bonis  upon  vvhich  he  jives  3. 
a  .T.ortjE.,v;e  to  secure  his  promissory  note  for  •4:1,000  payable  in 
three  years. On  Dec.  1,  1900,  A.  jives  C.  a  mort^a  ,e  to  secure  his 
two  notes  of  .^1,000  each  payable  in  two  years.  On   January  1, 
1901,  A  .^ives  D.  a  mort  v^-je  to  secure  his  note  for  ^500,  payaole 
in  five  years.   On  June  1,  1902,  A  sells  t::e  le.nd  subject  to  the 
said  mortgages  to  "2. 

ITov.  1,  1902,  C.  sells  and  assigns  one  of  the  two  notes 
sec'ired  oy  morttraje  to  F.  Tne   second  mortjaje  not  having  been 
paid  on  Aujv.st  1,  19CS,  C.  files  his  bill  to  foreclose  that  mort- 
gage, E.  havinj  refused  to  join  him  as  cor.rplainant, 

Eormal  Parties:   B.  nia,y  or  r:'.aj   not  be  made  a  party  ,.>.t  the 
option  of  C.   F' s  mort3a:']:e  ic^  due  and  can  be  paid  out  of  the  pro- 
ceeds of  the  sale.   But  since  he  has  a  first  lien  his  interest  will 
not  be  affectel  by  the  foreclosure  of  C's  m.ort'a:e. 

Proper  or  necessary  parties: --If  D.  is  :iir.de  a  party  his  equity 
under  the  thiTdlTiortja.je  wilTTe  oar  red  'oy   the  foreclosure.   If 
he  is  not  made  a  party  his  interest  will  not  be  affected.   Conse- 
quently, if  within  the  jurisdiction  of  the  court  he  m.ust  be  .•-•ade 
a  party  otherv/ise  he  may  oe  oraittei. 

Indispensable  parties :_ — A.  P.  Z.        A.  is  an  indispensaole 
party  since  he  is  entitled  "to  oe   heard  before  a  :iecree  will  oe 
.-^iven  for  the  airiount  iue,   and  also  if  t.'.e  com.plainant  desires 
to  hold  him  liable  for  any  deficiency,   'ii.  is  an  indispensable 
party  since  he  ov.tis  the  land  thi.t  is  to  be  taken  in  satisfaction 
of  A's  debt.   P.  is  an  indispensable  party  since  he  is  a  part 
ov/ner  of  the  mortgage  debt,  the  whole  of  v^.ich  must  be  paid  out 
of  the  proceeds  of  the  sale  of  the  mortgaged  property. 


EQUITY     PLI^ADIJG     AI^TD     iPRACTICE.  34. 

In  a  partition  suit,    all  persons  havin  ;  an   interest   in  the 
pre.Tdses,    wliether   in  possession  or  otherwise,    even   the  holder   of 
a  doY/er   interest,    whic/:  hi.3   not    been  adriiecsured ,  must  be  ::.ade   a 
party. 

Striker  v.   Mott,    2  Paije   Ch. ,    387. 

W'.en   a  person   is  made   a  party  to   a  suit   in   equity    (either 
as  plaintiff   or  defendant)    v/ViO   oi.  i;ht  not   to  have   oeen,    there   is 
said    to   be   a  misjoinder  of  parties.      Such  misjoinder 
is  fatal  unless  tj-e   bill   ceui   oe  -unienled  said   tlie  misjoined  plaint- 
iff dropped  or   the  bill   dismissed  as   to    the  misjoined   defendant. 


I 


EQUITY  PLEADING  AlTD     PHACTICE.  35. 

C  H  A  P  T  S  R  VII. 


J-HJIiT  IFARIOUStTJCSS . 

What  has  been  said  as  to  forr.al,  proper,  or  necessary  and 
indispensaole  pt,rties  refers  to  the  persons  interested  in  a  sinn;le 
C'.'.use  of  action.   Separate  and  independent  causes  of  action  can 
not  be  united  in  a  sinq;le  suit  in  equity  and  this    rule  limits  euid 
modifies  that  ot.'.er  rule  t:-.at  the  whole  of  a  iive;!  controversy 
must  be  determined  in  one  suit.   If  two  or  more  separate  and  inde- 
pendent causes  of  action  are  united  in  tlie  same  bill,  it  is  said 
to  be  Multifarious,  although  all  the  parties  are  interested. 
■        ^anT  Chy.  Pr.,  332  ITote. 

Brimner  v.  Bay  City,  46  Mich.,  236. 

"        "     "    Cas.  So.  PI.  4  Pr. ,  37. 

Judge  Campbell  gives  the  following  rule  as  to  multifarious- 
ness:  "The  j^eneral  rule  of  equity  is  that  every  secyral  grievance 
must  be  redressed  by  a  several  proceeding.   The  only  recognized 
exception  to  it  (aiid  tliey  are  consideraoly  qualified)  are  instan- 
ces v/here  there  is  a  sinule  right  asserted  on  one  side  which 
affects  all  t-e  parties  on  the  other  side  in  the  sajne  way,  or  a 
single  wrong  v/liich  falls  on  t:\ezu   all  simultaneously  and  together. 
The  instances  which  are  most  farlliar  are  rights  in  common  which 
are  resisted  by  the  ovmer  of  the  estate  w:,ich  is  charged,  tax  rolls 
assessing  all  parties  on  an  equal  ratio,  frauds  by  trustees  affect- 
ing all  the  cestius  que  trustent ,  and  the  like If  there 

is  any  distinction  irTTlie  proportion  or  character  of  the  several 
grievances,  there  can  be  no  joinder." 

"Wlien  the  cause  of  grievance  does  not  arise  out  of  the  same 
wrong,  affecting  all  at  once  as  well  as  similarly,  there  is  no 
foundation  for  such  joinder." 

Kerr  v.  Lansin-r,  17  lAicli.,    34 

One  of  the  instances  .mentioned  by  Jud;e  C?-mpoell  is  that  of 
several  tajcpayers  who  may  unite  when  a  particular  ta:-:  has  been 
assessed  against  all  of  them  upon  the  same  roll  upon  the  sa-me 
bas^s.  But  in  this  class  of  cases  they  must  not  only  have  a  com- 
mon grievance,  but  that  coiiL'non  grievance  miust  be  the  result  of 
the  same  facts  and  circu-mstances.   They  must  not  only  all  object 
to  the   sam.e  ta>:,  but  they  must  have         one  common  objection. 
Por  instance,  if  it  is  a  te^x  levied  for  ti:e  cost  of  some  public 
improvement,  a  paving  tax,  ditch  ta:c,  or  the  like,  the  irregular- 
ity complained  of  must  affect  the-m  all  alike.   One  cannot  comple.in 
of  one  irregularity  which  makes  tlie  tax  void  as  to  him,  and  another 
of  some  other  irregularity  which  makes  the  tax  void  as  to  him.  If 
each  has  a  separate  grievance,  although  it  goes  to  the  whole  trjc 
or  to  some  part  of  the  tax,  each  must  oring  a  separate  suit. 
7/inslow  V.  Jenness,  64  Mich.,  84,  87. 

H    V,     "     Cas.  Sq.  PI.  i-.   Pr.,  60. 


EQUITY  PrSilDING  AST)     PPACTICE.  36. 

Vice-chancellor  Wilicins  thus  defines  multifariousness: — "There 
are  three  anala^o^s  vices  to  which  bills  in  equity  are  subject — 
misjoinder  of  plaintiffs,  rrdsjoinder  of  -efendants,  and  multifar- 
iousness, or  misjoinder  of  subjects  of  suit.  Multifariousness, 
properly  so  cnJled,  exists  when  or.e  of  tVe  defendants  is  not 
interested  in  t^ie  whole  of  the  relief  sought,  as  t  e  old  form  of 
the  demurrer  for  multifariousness  shows.  L'lis joinder  of  subjects 
of  suit  is  wliere  two  subjects  distinct  in  their  n.:..-i::.:re  are  united 
in  one  bill,  and  for  conveiiience  sake  the  court  requires  then  to 
be  put  in  tv/o  separate  records." 

Pointon  v.  Pointon,  L.  R.  12  r.q_.    547,  555. 
"  "     Cas.  £q,   PI.  &  Pr.  65. 

W.urray  v.  Kay,  1  Sarb,  Ch. ,  59, 

"        V.       "        Cas.    ■':;(,.    PI.    r?:  Pr.  ,    39. 
A  bill   is   not  multif  rj.rious ,   however,    oecause   it   unites   several 
parties   as   defendants,    each  of  whom  is  not   interested   in   the  whole 

of   the   s\.'.bject  matter  of   the   suit.      As  when   a   bill  is  filed   against 
several  persons,    for  instance,    for   an  acco^^uitin^  for   a   stocic  of 
floods  wliich  one  of  the   defendants  has  fraudulently  disposed  of  to 
the  others,    w?o   had  knowled":e   and  v/ere  parties  to  zhe   fraud, 

In.'^ersoll  v.   Keroy,    ,/alK.    Ch. ,    6:3, 

Bla}:e  v.      Van  Tilbury,    21   Wis.,    679. 

Fellows   V.    Pellows ,    4   Cow.,    Sd2. 
A  bill  filed  for  a  partition  of   land  oetwecn   tenants   in  com- 
m.on   is  not   multifarious,    oecause   it   aslcs   for  axi  accountin<2  as  to 
the  property  and   that  a   tax  title  ootained   oy  one   of   t'.e   tenants 
for   a   tax  levied  wl^ile    the   letid  was   owael   in  corn'rion  be   set   aside. 

Page  v.  Webster,  8  Mich.,  2o3. 

A^llicums  V.    Gray,    3  Creenl.   20 7. 

V/oodruff  V.    i'ouii::;,    43  li'Iich.,    543. 
Wlien   several  persons   each  hold  a  separate   and  distinct   c^^aim 
to    title   to    a  parcel   of   i:;round,    one  of   them  filing  a  oill    to   quiet 
title   cannot   vriite   the  otjiers    in   the  same    oill    as   defendants;    but 
if,   before    tl^e   suit   is   commenced,    the   ot*- ers   should  have   each  con- 
veyed his   title   to   some  one  person,    then  all   these   several  titles, 
or   claims    to    title,    could   be  litisated   in   the   same   suit. 

•lunter  r.   Piatt,    11  J.lich. ,    264. 

•A'OOds   V.    Lionroe,    17   Mich.,    ?37. 

Hammonton  v.  Lott,    40  i:ich.,    19C-193. 
If   the  plaintiffs  have   a  conimon  interest,    and   the   defendants 
ar'ainst  whom  relief   is  prayed  hove   a  co.>mi-ion  liability,    unier  a 
contract,    or   througli  a  wrongful   c.ct,    t^-ere  is  no  misjoinder, 
althougii  the   rights   and  liabilities   of   the  parties   ure  different. 

Warren  v.    V/arren,    56  Me.,    360. 

"        V .        "  C :  s .   Ijq .   PI .    &  Pr .  ,    52 . 

And  when   the   oojecc   of    the   suit   is   single   and   t]-e   interest 
of  each  defendant   relates    to   any  relief  obtainable   elthou-n  ccn- 
fictin-'-  as  between   themselves,    there  is   no  misjoinder. 

Ro-ers  V.    Blackwell,    49   Men.,    192. 

Lockwood  Co.    V.   Lawrence,    77  !Ae.  ,    297, 


EQUITY     PLFu^ODIWCJ     I^^     PFACTICE.  37. 

Several  persons  who    c.ct   indepe.idently  of   each  otaer  when 
their   in.lepen '.ent   acts   tend   to  produce   a  ooL'\n.on  injury,  may   oe 
joined  as   defendants   in   a  bill    to    restrain  each   from  doin.?;   the 
acts   the   combined   effect   of  which  produces   tiie   injury.      In  such 
a  case  the  object   of  the    oill   beinj  3in3le,    t;:  e  separate  and 
independent   interests  of  t'^e  defendants   does   not   niai:e  it  niulti- 
f arious. 

Crossly  v.   Li^htowler,   L.    .v,    3  r,q.    Cas . ,    27U . 

Baird  v.    Jo.ckson,    98   111.,    78. 
To   detenrdne  w?;.ether  a  bill   is  ^r^ultif arious,    you  mu.st  look 
to  t>ie   stating  part   and  not    to   the  prayer.      The  prayer  may  ask  for 
separc.te   and   distinct    relief,    only  a  part  of  v^.ich  the  plaintiff 
is   entitled  to  under  t:;e   case  made  in  his  bill. 

Hcinmond  v.    Bank,   Walk.    Ch. ,    214,    247. 
If   the  defendant   t'links   t:iat   a  bill  is  multifarious,    and 
desires   to  take  aivajit-aje  of   th.cit   defect,   he   should  demur,    for  if 
he  answers,    and  the   objection  is  ..^.de   for   the  first    time   at   the 
hearing,    the   court  will   act  wholly  upon  its   o\«i   jud.-rient   as   to 
whether,    vmier   tirie  pleadin^:s   and  proofs,    a  decree  can  conveniently 
be  rru-^de  which   will  readily   settle  the  adverse  interests   of  all 
the   parties.      Theproofs  may  have   eliminated   the  oojections  alto- 
;-ether.      ;uid   t\e   court  will,    after   the  proofs  are   taken,    dispose 
of   the  whole  .T^.tter  upon  the  ;/erits   rather   than  subject        litig- 
ants  to    furtlier  e.cpense   aad  delay. 

Converse  v.   Mich.    Di5.ry  Co.,    45   Fed.   Kep.,    18. 

Fuller  V.   Baxter,    59  Vt.,    467. 


^ 


VIII.-  EQUITY     PLEATBTG     AKD     PRAGTICi;.  ' "      '     •    "38, 

C-H  A  P   T  E  n     VIII. 


ADIMESS  OP  THK  BILL. 

The  address  must  contain  a  proper  description  of  the  court 
in  which  it  is  filed,  and  since  that  differs  in  the  different 
states  the  hill  must  be  varied  accordinfi-ly.   A  bill  wlSoh   is  not 
properly  addressed  is  defective. 

Bow   V.  Butters,  2   Chicago  Legal  ITevv^s,  33. 
Sterrick  V.  Pugsley,Fed.  Gas.  No.  13379. 
"      V.     "     Gas.  Eq.  PI.  &.  Pr.  71. 

IITTRODUCTION. 

The  purpose  of  tl:©  introduction  is  to  inform  the  court  at 
the  outset  who  the  complainant  is  and  whether  he  sues  in  his  own 
name  or  in  a  representative  capacity.   The  residence  of  the  com- 
plainant should  "be  given  since  if  a  non  resident  he  will  he  re- 
quired to  give  security  for  costs. 

Grove  v.  Pettis,  4  Sandf.  404. 

"        "     Gas.  Eq.  PI.  &.  Pr.  73. 
The  bill  must  show  on  its  face  that  the  court  has  jurisdic- 
tion and  consequently  if  on  omission  to  give  the  residence  of  com- 
plainant leaves  the  question  of  jurisdiction  in  doubt,  tlie  omis- 
sion is  a  fatal  defect. 

Harvey  v.  Richjuond  etc.,  64  Fed.  Rep.  19. 

"  "  Gas.  Sq.  PI.  &  Pr .  74. 

A  corporation  is  deemed  to  be  a  citizen  of  tlie  state  under 
whose  laws  it  is  organised.  'vVlien  a  corporation  is  a  party  it  should 
be  described  by  its  proper  name,  followed  by  sui  averment  that  it 
is  a  corporation  created  and  organized  under  the  laws  of  the  state 

of         ,  and  has  a  place  of  business  at__   

Winnepiseogee  v.  Young,  40  H.'IlT,  ^f2^; 
Central  J/mfg.  Go.  v.  Hartshorn,  3  Gonn.  ,  199; 
Penn.  Go.  v.  Railroad,  118  U.  S,,  390; 
Goodlett  V.  Railroad,  122  U .    S. ,  391. 
The  court  will  take  judicial  notice  of  a  domestio-  public  cor- 
poration. 

Withers  v.  Y/arner,  1  Str.  ,  309. 
A  vol\intary  association  has  no  right  to  sue  in  the  name  of 
the  association.   The  action  must  be  brought  in  the  names  of  the 
persons  composing  the  association. 

Story  Eg.  PI.  §  386. 
1  Daniel  Ghy.  Pr.  29,  30. 
When  a  bill  is  filed  by  a  person  in  a  representative  capacity, 
the  averment  must  be  suf f icimtly  full  and  explicit  to  show  that 


VIII.  EQUITY  PLEAJDIilG  Al©  PFJ^CTICE.  39. 

he  hPS  ?.  ri^ht  to  maintain  the  suit. 

Middlev/orth  v.  Nixon,  2  Mich.,  425, 

Mannin.^  v.  Dralce,  1  Mich,,  34. 
When  a  ]:ill  is  filei  by  one  of  a  class  for  the  benefit  of  the 
complain^jit  and.  aJ.l  the  other  ineinbers  of  a  class,  it  must  be  so 
stated. 

Bedford  v.  Leigh,  2  Dickens,  707. 

Sosby  V.  Wickliffe,  7  B.  Mon, ,  120, 

STATING  PART  OF  THE  BILL.   D:£CREB  OF   CERTAINTY. 

The  stating  part  of  the  bill  contains  a  statement  of  the  facts 
upon  ^wJiich  the  complainaxit  asks  tlie  relief  prayed  for.   The  whole 
bill,  but  especially  the  stating  part,  should  be  drawn  with  the 
utmost  care.   All  necessary  facts  must  be  set  forth,  and  all  such 
other  facts  as  tend  to  emphasjse  and  magnify  t]ie  complainant?s 
equities  should  be  narrated.   The  language  used  should  be  simple, 
precise  and  must  be  certain  to  a  common  intent.   Speaking  of  the 
degree  of  certainty  with  wiiich  the  allegations  in  the  bill  must 
be  m.ade ,  Justice  Story  says  "that  there  are  three  kinds  of  cer- 
tainty applicable  to  different  parts  of  the  pleadings;  the  first 
kind  is  certainty  to  a  common  intent,  and  that  is  sufficient  as  a 
bar,  which  is  sufficient  to  defend  a  party,  and  to  excuse  him.   The 
second  is,  certainty  to  a  certain  inten"^  in  general,  as  in  courts, 
replications  and  other  pleadings  of  the  plaintiff;  that  is,  to 
convict  the  defendsjit  as  in  indictments,  etc.   The  third  is, 
certainty  to  a  certain  extent  in  every  particular,  as  in  estoppels, 
which  are  odious  in  the  law." 

Story  Eq.  PI.  §  240; 

Co.  Litt.  303  a. 
It  is  somewhat  difficult  to  clearly  distinguish  these  differ- 
ent degrees  of  certainty  fror.;  each,  other  and  especially  to  indi- 
cate clearly  the  distinction  between  the  first  and  second  which 
are  often  con-founded  both  by  text  writers  and  courts.   There  is 
a  certainty  to  a  comjiion  intent,  when  the  usual  meaning  of  the 
Y/ords  used  convey  to  the  ordinary  mind  a  clear  statement  of  a 
fact.   If  there  is  uncertainty  or  ambi.-ruity  they  are  not  certain 
to  a  common  intent.  As  an  illustration  of  what  is  meant  by  cer- 
tainty to  a  common  intent  the  case  of 

Dovaston  v.  Payne,  2  K.  Black.,  530, 

"         "     Cas.  Sq.  PI.  &  Pr.  118, 
is  in  point.   A  suit  in  replevin  was  brou.^t  for  certain  cattle. 
There  was  an  avowry  on  the  part  of  the  defendant  that  the  animals 
were  distrained  doing  da-iiage  in  his  close.  Tne   plaintiff  to  tiiis 
pleaded  that  the  cattle  were  in  the  highway  and  from  there  escaped 
into  the  close,  which  was  not  fenced  as  by  iiimemorial  custom  the 
defendant  was  required  to  fence  it.   To  this  plea  the  defendant 
demurred  specially,  for  that  the  plaintiff  did  not  state  that  the 
animals  were  rightfully  in  the  higliway.   The  demurrer  was  held 
good  for  the  reason  tnat  the  plea  did  not  state  with  certainty, 
to  a  common  intent,  that  the  cattle  were  rightfully  in  the  hi-^iway. 


VIII.       EQUITY  plsadhjg  abd  practice.         40. 

and  thus  set  forth  a  good  defense.   The  certainty  to  &  corcmon 
intent  must  appear  from  the  language  of  the  pleader,  and  other 
words  cannot  be  added  thereto  to  make  this  language  certain  and 
imambiguous, 

Dovastin  v,   Payne,  2  H.  Black.,  530; 

"  "    Cas.  Eq.  PI.  &  Pr.  118, 

Fuller  Y.  Hampton,  5  Conn.,  416. 

Certainty  to  a  certain  intent  in  general  is  required  in  in- 
dictmaits  charging  a  crime. 

Rex  V.  Home,  Gowp.  672,  682; 
Rex  V.  Linn  Regis  Doug.  158. 

Certainty  to  a  common  intent  is  usually  all  that  is  required 
of  the  pleader  in  equity.   But  this  certainty  is  made  up  of  two 
distinct  elements.  (1)   Certainty  as  to  the  matter,  and  (2)  Cer- 
tainty as  to  the  /nanner  of  charging  it. 

Hartwell  t.  Blocker,  6  Ala.,  581; 

"  "      Cas.  Eq.  PI.  &  Pr.  122. 

As  to  the  matter. — All  the  facts  necessary  to  constitute  a 
case  for~The  complainant  must  be  stated  with  the  requisite  certain- 
ty.  For  instance,  if  the  pleader  desires  to  charge  that  the  de- 
fendajit  has  been  guilty  of  a  fraud  since  fraud  is  not  a  fact  but 
a  conclusion  of  law,  the  pleader  must  set  forth  with  certainty  to 
a  common  intent  all  the  requisite  elements  constituting  the  par- 
ticular fraud  of  which  he  complains.   He  must  allege,  with  suffi- 
cient certainty,  the  seteral  acts  committed  by  the  defendant  »4aich 
taken  together  show  that  a  fraud  has  in  fact  been  committed  by 
him. 

Or,  again,  if  the  pleader  desires  to  compel  the  defendant  to 
carry  out  and  fulfill  a  verbal  contract  with  regard  to  land,  since 
a  -verbal  agreement  with  reference  to  land  is  within  the  statute  of 
frauds  and  not  enforceable  in  a  court  of  equity  any  more  than  at 
law,  unless  it  has  been  partially  performed,  or  some  other  equit- 
a"ble  reason  exists,  the  pleader  imist  with  certainty  to  a  common 
intent  show  that  this  particular  verbal  contract  has  been  taken 
out  of  the  statute  of  frauds  by  part  performance  or  in  some  other 
manner. 

So  imich  for  the  matter.   As  to  the  manner  each  of  the  allega- 
tions of  fact,  or  circiAmstance,  wEJch  it  is  necessary  for  the 
pleader  to  allege  in  order  to  constitute  a  fraud  or  to  show  that 
the  coniplainant  is  entitled  to  a  specific  performance  of  the  ver- 
bal contract,  must  be  stated  with  the  requisite  degree  of  certain- 
ty. 

While  the  matter  of  the  bill  need  not  be  set  forth  with  more 
certainty  than  to  a  common  intent,  it  is  advisable  when  it  can  oe 
done  to  make  the  allegations  as  definite  and  certain  as  possible. 
The  pleadings  thereby  are  made  more  effective  and  you  avoid  all 
questions  as  to  v4iat  is  charged.   And  there  is  authority  for  t\\e 
statement  that  certainty  to  a  common  intent  is  not  sufficient  in 

a  bill  in  equity. 

Story  V.  Winsor,  3  Atk. ,  632. 
ThQ  hill  in  this  state  must  be  dicided  into  paragraphs,  num- 
bered consecutively,  and  each  paragraph  must  contain,  as  near  as 


•*. 


VIII.  EQUITY     i>LjlADn^CT     AI!D     PRACTICE.  41. 

Tiiay   be,    a  separate  and  distinct   allegation. 

Mich.    Ch.   H.    1. 
In   draftin;;;   the   bill   the  pleader  siust    Dear   in  mind: 

1.  That    it   nu.st   appear  upon   the   face   of   the   bill   tliat   the 
cotlP  lain  Silt   is    entitled   to   t':e   relief   i.rayed  for. 

2.  That   all  persons    interested   in   tl^.e    sub,:ect  inatter   of   ti^e 
controversy  whose   interests  must  or  may  be   affected  by  the  de- 
cree are  made  parties    to    the   suit. 

3.  Tliat    tfie   suit   is   properly  brou-glit   in   a  court   of   equity. 
That    tJie   court  has   jurisdiction. 

4.  That   facts   are   to    be   stated,   not   conclusions  of   lav/. 
And   that   such  facts  ruust    be   stated  directly  and  positively,    and 
not   inf erentially. 

The  order   in  vd.ich   such  facts   shall   be   set  forth  is   left   to 
the   sound     judgment   and  ,<ood  taste  of   the  pleader,      Thefacts   s}-ould 
be    so  arranged   that   the  narration  will  not    tire,    but  will    interest 
t'- e   court   and  arrest   riis    attention.      Ziach  statement   sliould   oe   set 
forfi  wit>i  such  precision,    force   and  felicity  of   expression   as 
will   insure  recollect ion,    and   the   spirit  pervading   the  whole  must, 
7/liile   it    is   viciorous   and  a..'i,3res3ive ,    be   so    tempered  with   fairness 
and   justice,    t;.:at   tlje   jud:;-i;ient   of   t}ie   co\:rt   will    oe  unconsciously 
convinced  of    the  manifest    ec^uity  of   the  plaintiff's   cause. 

Comstock  V.    Kerrow,    45  Fed.    Kep .    660:  ^^ 

"  "  Gas.   Sq.    PI.    &  Pr.    69.  """^ 

STATS     PACTS . 

The   bill  should  contain  alle.-ations   of  fact,    and  not  .'nere 
recitals   of   circujKstantial   evidence   fro.:.  w:'iic:i   a  fact  mr.y   oe   in- 
ferred.     The   aller;ations  must   oe  plain tly  and  distinctly  made,    so 
that   the  defendant   niay  oe   explicitly  informed  of   the   claim  made 
against  him,    and   the    theory  upon  whicli  the   complainant    intends    to 
rely.  V/ilson  v.   3e;.::;leston ,    27  Mich.    257. 

Search,   12  C.   15.   Green  137. 
The  bill   of    complainant,    }iov/ever,    contains  not  only   a  stf.te- 
ment  of   the   complainant's   cause   of  action,    out   is   also   8ji   examina- 
tion  of   the  defendant.      It    is,    therefore,   permissaole  for  the 
plaintiff   to    state   t-:e   evidence   which  he   expects   the  defendant 
will   furnish  and   interro'-ate  hi.V:  'Afith  reference   thereto. 

Bank  v.   Levy,    3  Pai^e  606.  / 

"         Cas.    :r.q.   PI.    &.    Pr.    102. 
^"aen   it   is   necessary   to   refer   to  deeds  aiid  other  documents 
they   should  not    be   set   out   in  full,    out   the  effect   and  substance 
of    so  much   of   them,  as   are   pertinent   and  m.aterial   should   be   .^iven. 
Hood  V.    Inman,    4   Johns.    Chy. ,    437. 
"  "  Cas.   .£q.   PI.    oc  Pr.    126. 

STATE   PACTS  POSITIVIXY. 

When   the   facts  are  within   the   hnov/ledge  of  the   complainant, 
tl-ey  must  be  charged  positively,    but  when  such  facts   are  not  with- 
in his  knowled-e,    they  may  be   stated  upon   the   information  and 


^■:f 


■J--  tA.*^ 


VIII.  .^C^UIT"/  rn^I^im     -AiD  PP.ICTICE.  42. 

belief  of  corniD  lain  ant,  followel  by  the  averment,  that  he  char'^es 
them  to  be  true.  ° 

\7ells  V.  J3ridgewort,  30  Conn.  31C. 

Ca_mpbell  v.  Railroad  Co.,  71  111.,  611. 
Stating  a  fact  upon  information  and  belief  alone  is  insuffi- 
cient, oecause  a  t reverse  of  such  an  allegation  puts  in  issue, 
not  the  existence  of  the  fact,  b\it  merely  the  truth  of  the  allega- 
tion that  the  plaintiff  i:as  oeen  informed  and  believes  that  a  cer- 
tain fact  exists.     ir.^<^M-.jLV  "^^-J ijAJiJi*^  Zt.»::f  M.  ^>^    , , ■»  ^y-^-^-^g^  rf.  .v-r^tk.,^^' 

Ux.  parte  Re  id,  50  Ala.  435.  <---JC.^«>^  »^  ♦-^^-.-c  iie^^  • 
It  is  sometimes  difficult  to  determine  whet-.er  a  particular 
fact  has  been  averred  directly  or  inf erentislly.   If  from  the 
facts  wjiich  are  directly  and  rjopltively  averred,  the  existence  of 
some  other  fact  is  necessarily  (ind  conclusively  presumed,  such 
other  fact  has  been  sufficiently  alleged,  but  anything  short 
of  such  conclusive  presumption  is  regarded  as  mere  inference,  and 
will  not  be  considered. 

And  it  has  been  held  that  w'len  the  statute  required  the  agree- 
ment set  forth  in  the  bill  to  be  in  writing,  aiid  there  was  no 
direct  averment  that  it  had  been  reduced  to  v/riting,  but  a  posi- 
tive allega^tion  of  an  agreement,  tiiat  the  court  v/ould  presime  it 
was  a  le,2;al  agreement.   But  on  the  other  }iand,  if  it  appe«-red 
elssTThere  in  t'le  bill,  that  the  agreement  was  in  parol,  the  objec- 
tion could  be  taken  advantage  of  by  demurrer. 

Dudley  V.  Bachelor,  53  lie.,  403. 

Cozine  v.  Grahp-m,  2  Paige,  177. 

Macy  V.  Childers,  2  Tenn.  Ch.  438,  442. 
All  the  facts  nece3^•.ary  t©  entitle  tlie  plaintiff  to  relief 
must  be  stated  end  with  such  fullness  that  if  they  are  radmitted 
by  the  ajiswer,  or  by  the  bill  being  taken  pro  confesso,  the  com- 
plainant will  be  entitled  to  a  decree. 

The  case  made  'o^   the  Dill,  if  not  admitted,  must  be  establish- 
ed by  proof  and  the  allegations  and  proofs  must  reciprocally  meet 
and  conform  t'^  each  ot'ier.   Facts  estaolisi-ed  by  the  admissions 
of  the  defendant,  or  the  testimony  of  witnesses,  will  not  be  con- 
sidered by  the  co\Art,  unless  such  facts  are  distinctly  alleged  in 
the  bill,  no  matter  v/hat  weight  and  importance  they  mao'  have  in- 
trinsically. 

The  issue  presented  oy  the  pleadings  is  the  issue  to  be 
tried  sXid  all  evidence  which  does  not  bear  v:$on   that  issue  is 
necessarily  irrelevant  ?ji1  iinmaterial . 

Harrison  v.  wixon,  r)  Peters  483,  503. 

Conneston  v.  Miller,  41  Mich.  608. 

Dorn  V.  Gender,  171  111.,  362.         ^ 
"       "      Gas.  i:ci.  PI.  £:  Pr.,  85. '^ 
As  an  illi.i3tro.tion  of  the  .necessity  which  rests  upon  the 
com^plainant  of  alleging  a"!  1  the  facts  in  i;is  bill  necessary  to 
constitute  his  case,  a  bill  filed  to  enforce  rights  corn'erred  by 
t-^e  statute,  is  a  rood  exEimple.   In  such  a  case  the  bill  im^st  show 
a  substantial  compliance  with  every  provision  of  the  statute  upon 
which  the  complainant's  riglat  depends. 

Kemeau  v.   I'lills,    24  .Mich.,    15. 

Bangs   V.    Step}ienson,    63  Mich.    661. 

Paine  v.   llewell,      66  T.iich.  ,    245. 


VIII.  EQUITY     PLLADEilG     AtTD     PRACTICE.  43. 

And  when  a  cornplainant   claims   rights   under   any  judicial 
proceeding  the  averments  of    the  hill  must    Siiow  all   the  facts  neces- 
sary  to   establish   the  validity  of    such  proceedings. 

Hohart  v.   Prisoie,    5  Conn.,    592. 

1-Cxinicel  V.   Markell,    26  Md.  ,    390-403. 
\Vlien  a  bill   is   filed   to   enforce   ri3hts   given   by  a  statute, 
and  there   is    an   exception   in   the  enactin.--  clause  of   such   statute, 
t})e   oill  im,ist  negative   sucJi  exception;    but  where   there   is   no   ex- 
ception  in   the   enacting  clause,    but   an   exer-ption  in  a  prociso 
thereto,    or   in  a  subsequent    section  of    the  a.ct,    t?:e  bill   need  not 
aver  that   the  defendant  does  not   come     within   the   exemption.      The 
exemption  of   the  defendaxit   if   it    exists,    is   a  .natter  oT  defence. 

Attorney  General  v.   Oai^land  Co.   Bic. ,   Wal.    Ch.   90. 

Teel  V,    5'onda,    4   Jolins ,    304. 
The  bill  must   contain   averments   of   every  fact  necessary  to 
';^ive   the  court   jurisdiction,      For   instance,    except    in  certai:i 
cases,    the  court   of   equity  is  not    ;^iven  jurisdiction  unless  the 
a;nount    involved  is  at   ]  east   a  specified   sum.      In  this    state  the 
mdnimum  su.m  is  one  hundred  dollars.      When  the  bill  on   its  face 
shows  that   the   amount   in  controversy  is  not   sufficient   to   give   the 

court   jurisdiction,    tlie   defect   is   fatal,    and  if  called  to    tlie 
attention  of   the   court,    or  discovered  by   the  court,    tjie  bill  will 
be  dismissed,    and  •■flaen   the   amount   in  controversy  exceeds   that    sum, 
and   the  bill   is   silent   as    to    the   amount,    it    is  defective, 

Gamber  v.    Holben,    5  Mich. ^    331. 
But  althougli   the    bill   mx^o,-  not   contain   the   specific   allegation 
that    the  amount   in  controversy  is   sufficient   to   give   the  court 
jurisdiction,    still  if   there   are  averments  which  clearly  and 
unequivocally  show  that    it  m.ust  necessarily  be  of   sufficient  value, 
such  averments   are   sufficient    to   ::ive   the   court   jurisdiction. 

Aboott   V.    Gregory,    39  Mich. ,    68. 

Gidden  v.   Morrell,    44  Mich.,    202. 
In   setting  forth  the  facts   in   the  bill,    the  pleader   should 
avoid,    as   far   as  possible,    all  unnecessary  recitals   of   deeds,    docu- 
ments,   contracts,    or   otrer   instruments  verbatim.      After  referring 
to   a  document,    the  pleader  m^,y  aid  tlie  follo'jvin.g  formula:      "As  by 
said   indenture    (or  agreement),    v/sien  proved,    will   appear,"      This 
m.akes    the  whole  docuinent   referred   to  a  part  of   the    record. 

Harmer  v.    Gooding,    3  DeG.    &  S. ,    407-410. 

Swetland  v.    Sv/etland,    3  Mich.,    432; 
1  Daniel   Chy.   Pr.    420. 
The  pleader,   however   is  not  permitted   to   refer  to    some  otr.er 
bill   and  made   its    el  legations    a  part   of  his  own.      The   rule   is 
tiiat   "every  original  bill  m.ust    be  comjplete   Ir.  itself.,   "oy  allega- 
tions  embodied   in   it,    or  by   er-chioits   attached   to   it,    to    enable  the 
court   to   act   upon   it  v.'ith.out   reference   to   e.ztraneous   documents." 

lioses  V.    Brodie,    1  Tenn.    Chy.,    397. 

Mayor  v.    Singnoret,    50  Cal.,    298. 

PACTS  NOT   C0::CLUSIOl]5   OE  LAV/. 

Pacts   and  not   conclusions   of  law  must    be    stated.      Por 
instance,    if   the  bill   seelis   to  have  a  tax  deed   set   aside   on   the 


VIII.  EQUITY  PLZADIiTG  AND  PRACTICE.  44. 

'ground  that  t:-e  tar.  for  v-'hich  the  land  v/as  sold  was  an  illegal 
and  void  tax,  the  facts  upon  v/hicli  the  pleader  relies  to  show  that 
the  tax  was  in  fact  illegal  and  void  rm.-.st  be  averred,  and  a  rr.sre 
allegation  t}iat  trie  ta:^  is  void  is  not  sufficient^  however  posit- 
ively made.   Such  an  averment  would  be  a  conclusion  of  law,  not  a 
fact.  Gamble  v.  r^ast  Saginaw,  43  Midi.,  367. 

Foster  v.  Hill,  55  Mich.,  540. 

Le  Baron  v.  Sheplierd,  21  Mich.  ,  263. 
As  a  general  rule  an  allef::atio;i  of  fraud  is  insufficient  to 
support  proof  of  facts  establishing  the  fraud.   Such  facts  should 
have  'oeen   alle^^ed.   On  the  other  hand,  if  the  allegations  of  fact 
clearly  show  tliat  a  fraud  lias  been  couiiiitted  there  need  be  no 
positive  allegation  of  fraud. 

The  reason  for  this  rule  is  that  fraud  being  a  conclusion 
of  lav;,  not  depending  upon  any  particular  fact  or  number  of  facts. 
A  naked  alleviation  of  fraud  is  a  .mere  statement  that  the  pleader 
believes  that  the  court  will  find  that  the  defendant  has  comrdtted 
a  fraud,  witi:out  alle^jing  what  act  or  series  of  acta  tlie  defendant 
has  wrongfully  done  or  omatted  to  do,  which  constitutes  the  fraud. 
Such  an  allegation  does  not  char?;e  the  defendejit  with  doing  or 
not  doing  axiy  specific  act,  and  no  specific  act  having  been  alleged 
there  is  no  foundation  to  support  any  proof.   But  if  specific  acts 
are  ciiarged  oxi:l   such  acts  constitute  a  fraud,  to  aver  fraud  is 
simply  to  call  the  attention  of  the  court  to  a  conclusion  to  which 
it  would  come  without  the  assistance  of  the  pleader. 

Seals  V.  Robinson,  75  Ala.,  363. 

"         "      Cas.  Sq.  PI.  A  Pr.  76. 

Hubbard  v.  McNaughton,  43  Mich.,  221. 

Hale  V.  Chandler,  2  Mich.,  531. 

Merrill  v.  Allen,  38  Mich.,  487.. 
When  the  right  of  tlie  complainant  depends  upon  the  perform- 
ance of  a  condition  which  has  not  been  performed,  he  must  set 
forth  the  facts  which  excuse  its  performance,  an  allegation  that 
he  has  a  g^od  excuse  is  not  sufficient  to  support  testimony  as  to 
the  facts  vSiich  excused  performance.  'liVhether  the  facts  constitute 
a  good  excu?:e  is  a  question  of  law. 

Le  Baron  v.  Shepherd,  wi  J/dch.  ,  263. 
If  the  bill  shows  that  the  injuries  complained  of  are  of  such 
long  standing  that,  unexplained,  they  impute  laches  to  the  com- 
plainant, the  facts  relied  upon  to  excuse  the  delay  must  be  set 
forth  in  the  bill,  or  otherwise  it  may  be  attacked  by  demurrer  or 
plea,  or  the  court  of  its  own  motion  may  refuse  to  consider  the 
case.  Sulivan  v.  Railroad,  94  U.  S. ,  806. 

Fe.yward  v.  Banic,  96  U.  S.  ,  311. 

Spridel  v.  Kenrici,  120  U.  S.,  377. 

Richards  v.  Mackal ,  124  U.  s.,  163. 

OFEIR  TO  DO  EQUITY. 

It  is  a  maxim  of  equity  th.at  he  who  seeks  equity  must  do 
equity.   Therefore,  if  under  the  facts  stated,  any  duty  devolves 
upon  the  plaintiff  vrhich  in  good  conscience  he  ought  to  perform, 
althougli  its  perforii'iance  could  not  be  compelled  at  law,  he  must 


VIII.  EQ^UITY     PL>.ADI1TG      I'lUi     PrACTIC:^.  45. 

B.ver   a  readiness   and  willinr^ness   on  his   part   to  perfonn  it,    other- 
wise he  will  not   be  '-^.eard  to   cor.iplain. 

If  the  relation  of  the  parties  is  such  tliat  the  complainant 
is  required  to  do  3o:net-..ing  before  t:ie  defendant  is  required  to 
move,  V'-B  oill  must  show  perf or-^nance  on  his  part,  or,  in  case  of 
non-perf ornance.  that  h.e  has  a  c^ood  exciAse  t?erefor,  and  he  must 
aver  also  a  willingness  to  perform  from  time  to  tim.e  anv  end  all 
duties  that  may  devolve  upon  him  with  reference  to  the  matter  in 
controversy. 

Perr-^  v.    Carr,    41  N.    H.  ,    371. 

"   ^  "  Gas.  :2o,   PI.    &  ?r.  ,    31. 


*************** 
*  * *** ****** 


IX.  EQUITY     PLSAJDDIG     Al^D     PRACTICE.  46. 

C   H  A  P   T  T']   K      IX. 


♦*♦»**#»» 


TIIE   COiQ:KEE(EP.ATIiTG  P.\KT. 

It   is  not   necessary  that    tlie  bill  should  aver   triat   the   defend- 
ant  is   confederating  with  unknown  parties   with  intent   to    injure 
and  defraud   the  complainant,    unless      such  is    the  fact,   and   that 
fact   is  of   importance   to   the   cociplainant.      In   case,    however,    that 
fact  exists,    and  is  important,    it  should  Toe   set   out   as  fully  and 
precisely  as  possible.      And  in   such  a  case   it   is   better  that   that 
fact   should  appear   in  the   stating  part   of   the   bill   as   constituting 
a  part   of    the  plaintiff's   cause  of  action. 

TIIE   CliARGING  PART. 

The  original  purpose   of    the   charging  part  was   to  meet   and 
answer    some   special  defence  of   the  defendant.      ihis   was  done  by 
averring,   by  wa,y  of  pretense,    each  special  defence,    and  then   add- 
ing matter  of  reply  in  the   form  of  a  charge.      In  this  v/ay   the   com- 
plainant would  avoid  the  necessity  of  amending  his   bill,    so  as   to 
meet   and  answer    the   defence,   which  the  complainaats  knew   in   advance 
the  defendant  would  make.  i 

Smith  V.    Clark.    4  Paige,    368.  / 

"  "  Gas.   Eq.   PI.    &  Pr. ,    92. 

Van  Riper  v.    Claxton,    1   Stockton,    302. 
.  Coneston  v.   Miller,    41  Llich.  ,    608. 

THE    JTjRISDICTIOi^fAL    CLAUSE. 

This  clause   is  usually   retained   in  this   state,    although  its 
omission  does  not   render  the  bill  defective.      The  averment   that 
the  court  has   jurisdiction   is   a  mere   conclusion  of  law  at  best, 
and   does  not    strengthen    tlie  averm.ents   of  fact,    which   show  that 
the   cause   is   cognizable   in  a  court   of   equity,    nor  on   the  other 
hand  will   it  make   good  the  want   of    some   necessary  averment. 

Goodwin  v.    Smith,    89  Me.    506. 

'"  "  Gas.   Eq.   PI.    &  Pr.    94. 

Bateman  v.  Wilboe,  o  Sch.  5:  Lef,,  201,  204. 

Story  Eq.  PI.  §  34. 
In  the  United  State  court  it  is  not  necessary  to  insert  in 
the  Dill  the  confederating  or  charging  part  or  the  jurisdictional 
clause.        U.  S.  Rule  21. 

Perry  v.  Corning,  7  Blatch. ,  195. 

Dunham  V.  Railroad,  1  Bond,,  492. 

Walden  v.  Bodley,  14  Pet.,  156. 


IX.  EQUITY     PLEADING     AlW     PRylCTICE.  47. 

IHTERROGATING   PART. 

PoniB  rly  tJiis  was  an    essential   and  important  part   of   the  bill. 
When  parties   in   interest   were   incompetent   to    testify,    the   com- 
plainant could  in   this  way  alone  make   t:  e  defendant   a  witness, 
but  now,    since   the   statute  permits   all  parties   to  be   examined  as 
witnesses,    the   interrogating  part   of   tlie   bill   in  most   cases   is 
of  no   importance.      At   common  law   the  ansv/er  of   the  defendant  was 
evidence   in    the  case,   and   could  not  be  overcome  by  the  plaintiff 
except  by   evidence   equivalent   to    the   testimony  of   two  v/itnesses. 
And  consequently  when  the  rules  permitted  the  plaintiff   to  waive 
an   answer  under  oath  that   course  was  usually  adopted.      The  present 
Iiachigan  rules    (Rule  10.)    provide    that   a  sworn  ans'^-er   shall  not 
have  the   effect   of   testi2r:ony,    and   therefore   the  plaintiff   can,    if 
he  desires,    ootain  from,  the  defendant   a  full    statament   of  his 
defence  under  oath. 

Mies    V.    Miles,    27   N.   H.    440. 

Gas.   Eq.    PI.    &  Pr.,    95. 
This  part   of   the  bill   sajiS   that   the  defendants  may  answer 
all   the  matters  contained   in   the   stating  pa,rt  of   tlie  bill   not   only 
as   to    their  laiowledge,    but   also  as   to    their   information,    remeaa- 
brance   and  belief.      If   the   complainant   could   trust    the  defendant 
to   reply  fully   to   all   the  m.atters   contained,    "as   though   the   S8.me 
were  a,'":cln   repeated  and  he   thereunto    specifically  interro-jated,  "it 
would  not  be  necessary  for   this  part   of   the  bill   to      contain 
any   special    interrogatories.      But    it   is  not   always   safe  to   repose 
so  much   confidence   in  eui  opponent.      It   is   customary,    therefore, 
for   the  general   interrogatory  to   oe   followed  'oy  specific   questions. 
Such  questions  must   be  nuj^ibered,    and   they  must   ask  for  discovery 
touching"   some  allegations  r^iade   in   the  bill.      The   defendant   is   not 
required   to   ansv/er   cxiy  qi.i6stion  hsivin  ;  no    reference    to    a:iy  allerjs.- 
tion  m.ade   oy    the  bill.      Such  questions   are  wholly   irrelevant. 
This  part   of   the  bill  is    simply  an   exa^rdnation  of   the   defendant   as 
a  witness    in  the   case,    and  the    rules  of   evidence  governiiig  the 
admission   of   testimony   apply. 

Bank  v.   Levy,    S  Pai^e   306. 

"  "  Gas.  Eq.   PI.    and  Pr.    102. 

I'lackelston  v.   Brovm,    6  Ves.,    52,    62. 

Clayton  v.    Winchelsea,    3  Y.    &  Coll.,    683. 
When  an   aiiswer  under  oath    is  not   waived,    and  the   answer   is 
put   in  under  oath,    so  much  of   it  as   is    res."^onsive   to   the   interroga- 
ting part   of   the  bill    is  evidence  for  the   defendant   in  the  absence 
of   an^'-  rule  upon   the    subject.      Putting  an  answer    in  on  oatli,   when 
an   answer  under  oath  has  been  waived,   hov;ever,    does   not  raake   it 
evidence  for   tJie  defendant. 

iTev/ton  V.    Callashan,    85  Mich.,    SOI. 

Wallwork  v.   Derby,    40   111.,    527. 
Vvhile   the    strict    rules   of    th.e  com-nion  law  governing  tJie   admj.s- 
sabilit^'"  of   testimony  were    in  force  bills  were  frequently  filed 
to   obtain  discover;^'",    tiie  defendant's   testimony,    and   the  relief   to 
which   such  discovery  would   entitle   t>ie  complainant. 


IX,  EQUITi      PI^AnrilG      AM)     PRACTICE.  48. 

When  an   answer  on  oath,   is   waived  no   relief   can   be  prayed 
v.'hich   rests   solely  upon   t::e  necessity  of  discovery,    for   the    reason 
that    'oy  7/aiving  the   ri.^it    to  sjiswer  upon  oath,    t;.;.e   complainant 
has   t";ereby  waived   all   ri£;'^t    to   discovery. 

Torrent  v.    Ko^ers,    39  3iLich.  ,    85. 

Wliere  discovery,    therefore,    is  desired,    an   aiiswer  upon  oath 
rrrust   not    oe  waived  and  interro -atories   should   be   added,    so   dra'wn 
that    the  defendant's   attention  will   oe  particularly  called   to   all 
those   facts   aiil  circiunstances    to   which  a  full  discovery  is   desired, 
Tlie  rules    of   the   Supreme  Court   of   the  United  States   require    tiiat 
t'.i.ese   ii:iterrogatories   shall   oe  numoered  and   tiiat   the  conplainant 
sliall   designate  by  a  note   at   the    end  of   the  bill    the  particular 
interrogatories   which  eac'\   of    the   defendants    is   to    answer. 
U.    S.    Rules   40    to    44   inclusive. 

PxlAYER  K)R  EZLOF, 

Ks.vin,'^  fully  stated   to    V.ie    court   his    cause   of    action  and   eic- 
plained  wherein  the   complainant  has   alreaA",'  oeen  deprived  of  his 
just    ri,x'::.ts,    or  in  v/hat  n:s.nner  }ie   is   tlireatened  7/ith   a  deprivation 
of   those   rif^r.ts,    the   pleader   asks,    in   the  pra^'er  for   relief,    the 
aid     and  assistajice   of   the   court.      The  pra,yer   is  usi;.ally  for 
specific   and   for    jeneral    relief.      T].e  prayer  for   specific   relief 
r.ay"   be  in   the   alternative,    tl-iat    is,    the  pleader  rns.y  ask  for  some 
particular   relief   and   then   add  a  prayer  for   some  other   relief   in 
lieu  of   the  first,    in  case  that   shoiJ.d   be   denied.      TJie  pleader  is 
frequently   compelled   to   resort    to   this   course.      lie  ma^'"   oe   in  doubt 
in  regard  to    the  facts   in  controversy,    or   if  he  is  perfectly  fam- 
ilir.r   with   tr.e  facts  he  may   be   in  douot   as   to    the   conclusion  of 
lav/  the   coujrt   will   draw  froi-.  them.      In   all   cases   of    doubt   it    is 
projer  to  have   a  prayer  for   specific    relief  dravm   inthe   alterna- 
tive.     But    a  bill    so   ■Ira.vm.   that    specific    relief   in   the   alternative 
!nay   be  prayed  for  mu.st   be   consistent  with   itself.  rhe  bill  must 

not   contain   distinct   causes   of   complaint  winich  are   inconsistent 
with  and  defeat   each  other,      i'h.e  pleader  miust  not   blow  -lot    and 
cold.  Lloyd  V.   Brewster,    4  Pai^e,    537. 

Cotton  V.    Ross,    2  Pai^e,    396. 

Hart   V.   licKeen,    Wal.    Ch.,    417. 

Farwell  v.    Johnson,    34  Mich,,    342. 
If      tjiere  is   a  prayer   for   special   relief  merely  ejid  upon  the 
pleadings   and  proofs,    tl-e   complainant   is   not   entitled   to   t'at 
particular  relief,    he  will  not    be   lylven  any  relief   at  all  and  his 
bill  will    be   dismissed,    unless   he   is  penTdtted   to   a^-iend.      The 
court  will   vj.ot  render  voluntary   aid. 

Polk  V.    Clinton.    12  Ves.,    43. 

Story  -■"jq.   PI.    §'^i    40,    41. 

Snr^lish  v.   roxall,    2  Peters,    595. 

Marder  v.   Wri'vJ.it,    70   Iov,'a,    72. 
Therefore,    in   addition  to   the  prayer  for   special   relief, 
there  ou[Slit   to   oe    added  a  prayer   for   /general   relief,    so    that   if 
the  particular   relief   asked  for   is   denied,    u;e   complainant   m£iy   oe 
allowed   such  other   relief   as   is  agreeable  to   the   case  made   03'  the 
bill.      It  has   oeen    said   that   a  prayer   for     ,ener?.l    relief'  is 


106. 

'z  Pr. 

> 

108.   -■ 

68. 

&  Liar. 

] 

17    9  A 

,25. 

IX.  3QJJITY     PLI^ADIira     AJID      PxViCTICS;.  4J. 

sufficient,  and  tliat  a  prayer  for  special  relief  may  oe  or.itted 
fron  the  Dill  and  asked  for  at  the  ivearint-,  e::cept  such  special 
relief   as   en   injunction,    a  writ   of  ne   e-.:eat,    etc. 

Ilolden  V.   Holden,    ?.4"Tll.  Aop, 
"  "  Cas.   ^0.   PI. 

Hiei-n  v.    Mill,    13  Ves.,    114. 

Colton  V.    Ross,    2  j/aige,    395. 

Texas  v.   Heidenberj,    10  7/al.  , 

Pleasa.nts   v.    Glasscock,    1   Sui. 

Story  Eq.    PI.    §    41. 
"I'be   ■:;eneral  prayer  for   relief   is  confined   to    the  claim  and 
the  ,!-^round  of  jurisdiccion  stated  in  the   Dill."     . 

Dyer  v.   Vinton,    10  r..    I.,    517. 

Cloud  V.    Xiblee,    2  Del.    Ch,    23. 

Machinist's  Natl.   3k.    v.   Field,    126  Mass.,    345. 

Dayton  v.    Dayton,    08  :.ich.,437. 

Jones   V.    Van  Doron,    130  U.    S.,    684. 
It   is  very  desirade,    however,    that   tj_e  pleader   SiOuld  pray 
for   t?:e   specific    relief   t-;   w'.ich  he    oelieves    tJiat  rie    is    entitled. 
It    infonr.s   t'.:e   court   in  advance  v;":at   relief   the  plaintiff   tl.inks 
he   is   entitled   to   under   t   e   case  .v.c,ie  on   t'-.e   Dill.      It   is   always 
safe,    siid   clearly  prudent,    for   the  pleade:'   zo   ask  for  all   the 
specific   relief  he  t/.inks  lie   1^.    oossijly  entitled  to   and   then  for 
fear   so!ne   relief  has    oeen  or.itted  to   add  a  prayer  f ..-r    :eneral 
relief. 

A:rdn-^ton  v.    Sisco;r;,    34   Col.,    355. 
"  "  34  .-'jr..   Deo.  ,    72. 

■.7i:en   special    relief    is  desired  'A'l-'ile   t're    suit   is   pending — 
for   insta.nce,    an  in.juiiction,   writ   of  ne   exeat   re-^no ,    receiver, 
etc.,    the    Dili   shoLila  contain   a  spec iaT  p"ray er~t ■  e ref o r . 
.  l/ioore  V.   Hudson,    6  Had.,    218. 

Spooner  v.    iV.cConnell,    1  I'.cLea:i,    337. 
'■flhen  a  bill   is  filed  for   discovery  merely  and  the   complainant 
is  not   entitled  to   any  relief   in   addition  to    the   desoovery,   lie 
must   confine  his  prayer  for   relief    to   the  particular    relief   to 
w]-iGh  he  is   entitled. 

Wells  V.    Railroad,    '/al.    Ch.    35. 

Loker  v.   Roll,    3  Ves.,    4-7. 
The  prayer  for   relief   should  be   divided   into  pc.rar^jraphs   and 
eac?i  paragraph  numbered   and   sucli  is    the   requiremeixt  of   the  JAich- 
i<is.n  rules.  Chy.   R.    I.,   b, 

Pi\AiRE   FOR  PROCESS,    SUBPOiliTA. 

At   coiTEion  law  t.e  prayer   for   process  was   an   essential  part 
of   th.e  bill,    aiid   if   it  was   omitted   the    Dili  v/as   ilemurraoie. 

vvri-^it  V.    <Vri^:.t,    4  Hsast.    Ch.,    143. 

8   1^.    Y.    Rq.,    143. 
Gas.   :?Ci.   PI.    2z  Pr.    111.- 
In   the  prayer   for  process   :r.vist    oe  inserted   the  na.  es   of   all 
t";e  persons  whom  t^.e  complainaiit    lesires  to  make   defendants,    and 
only   tliose  whose   naines   are   inserted   are  maJ.e  defendants. 


IX.  EQ^ui'-iY    .pli::admg     AITD    PR/.CTICE.  50. 


?rowe  V.   Fvobbins,    36  il.    J.    '..Zv . ,    19. 

"  Cas.   Zq.   ?1.    r^  ?r.  ,    111. 

Verplank  v.    Ins.    Co.,    2  Pui^^e,    433. 
Lyle  V.    Bradforrl,    7     B.   .'.lonroe,    113. 
If  a  suit    is  ai3ainst   a  person  both  in  his   individual   and 
representative   capacity,    process  .Tiist    oe  asiced  againsT:  hini  in 
Doth   capacities. 

Carter  v.    Ingraliajn,    43  Ala.,    78. 

Cas.   ;Sq.   pi.    &  Pr.,    113. 
There   are  cases   that  hold   that  when   the   suit   is   against   a 
person   in  his  representative  capacity  slu'.ply,    t.^iat  wv-.en  all   the 
alle.';^ations   are  /nade  w]iich   are  necessary  tu  hold  hi.m  in  his    re- 
presentative   capacity  and  no  relief  niay  be  iuid   a/^ainst  him   in  his 
individual  capacity  tiiat  prr.yer  for  process   a/.;3.inst  hira  personally 
is  good.  Plant  v.   Plsait,    44  '3.    J.   Sq.  ,    18. 

Ransom  V.    Geer,    30   il.    J.  jiq.,    249. 
V/h-ite  V.    Davis,    47  i;.   J,   Eq.  ,    187. 
Tlie  bill  must   oe   signed   oy  complainant's    solicitor,    but  need 
not  be   si'^ned  by  complainant. 

Ivartin  v.   Palmer,    72  Vt.,    409. 

"  "  Cas.   Eq.   PI.    &  Pr.,    117. 

SVvOEIT     BILLS. 

Ordinarily   the  bill  need  not   oe   sv/orn    to,    but   there    are   cer- 
tain exceptions.      Bills   must   be  verified  when  they  a,re  filed: 

1.  To   obtain  the   benefit   of   eun    instrument  upon  which   an 
action   at   law  will  lie. 

Llarch  V.   Davison,    9  Pai:^e,    580, 
Bennett   v.   Waller,    23   111.,    97. 

2.  To  perpetuate    ti'e   testimony  of   witnesses. 

Laiii'ht  V.   Jiovi^an,    1   Jol-Lns.    Cas.,    429, 
Story  Eq.    PI.    §§    304,    309. 

3.  To   obtain  a  divorce. 

I.lich.    Ch.   r^ule   29,    a. 

4.  Bills   of   interpleader. 

Edrin'-^ton  v.    Allsbrook,    21   Tex.,    186. 
Monks   V.    Holroyd,    1   Cow.,    691. 

5.  Bills  praying  for  a  preliminary  injunction, 

Koldred^e  v.    ClxTynne  .^    3  C.   h.    Green,    26. 
Moore   V.    Cheeseman,    23  liich.  ,    327. 

6.  Bills  prayin.];  for  a  writ   of  ne   exeat. 

r.ice  V.    Tlale,    5   Gush.  ,~l?o"57 

7.  Bills   of  Review. 

Sandford  v.    Haines,    71  /.icJi.,    116. 

8.  Any  bill  required  by  statute   to    be      o'.vorn   to. 

Mich.    Chy.   R.    2. 
How  the  bill  shall    oe   verified,    that   is,    trie   form  of   tlie  oath, 
is  prescribed  'oy  the    rules    xovernin;^  t!ie  particular  court  v/here 
the   suit   is   brought. 

Mich.    Ch.   Rule,    2. 
It   is  usual   for   t'.e  plaintiff    to   si:;n  t^'.e  bill   if   it   is   veri- 
fied by  hLm,    but    such     si^nin^  is  not   necessary.      If  he   si3ns,it 


IX.  EQUITY     PL3ADING      AM)     PHACTICE.  51. 

should  "be, of   course,  at  t:ie   bottom  and  at    the   risiit   hand. 

The  bill  must    be   signed  by   tl-.e   solicitor  for  the   complainant, 
as  such   solicitor.      The  proper  place   is   at   the  bottom  of   the  bill 
and  at   the   left.      The   signature  must  be  written   not  printed. 
Eveland  V.    Step]:enson,    45  llich.  ,    394. 

The  bill  should  be  properly  folded  and  endorsed.      The  endorse- 
ment  consists  of   the  nanie  of   ti  e   court  wvttoen  at    the  top,    fol- 
lowed by  the    title   of   the   cause,    and  this  much,   should  fill  the 
upper  half,    then   follows   the   laoel,    "3ill   of  Complaint"    and  at 
the   Dottom  the   signatures   of  the    solicitors  for  complainant   as 
such. 

All   subsequent  papers    are   to   be  endorsed  in  the   sa.me  manner, 
except   that   the  label  desigr^iites   t]:e  cliaracter  of  t-e  paper   and 
the  signature   at   the   bottom  is   that   of    the  solicitor  of   the  party 
in  v/hose  beiialf   it   ir.   dravm, 

■When  a  paper   is   filed,    tlie   re^rister,    or   clerk  of  the   court, 
endorses  belov/  the   label    the  dace  of  filing;, 

PILING   TKS   BILL. 

-he  bill  having-  been  drafted,    signed  by  counsel,   verified 
when  necessary,    and  properly   endorsed,    is   filed,   witji   the   clerk 
in   the  United  States   court,    with  tlie   re.jister  of   the  circuit 
court   in  tliis   state.      The   coxAnty  clerk  in  this   state   i:?  clerk  of 
the  circuit  court,    and   register   of   fe  circuit   court   in  chancery. 
But   since   in  popular  Icuijuage  he  is   spoken  of   as   clerk,    simply, 
and  the   sa;ne  officer   in  ti:e  United   States  court   is   styled  clerk, 
to  prevent  confusion,   we   shall    refer   to  him  as   clerk. 

Bank  v.   Hoyt ,    74  I.Tiss.,    221. 

"    Gas.  Sq.  PI.  &  Pr.,  129. 
In  this  state  upon  filing  t}ie  bill  a  suopoena  issues  as  a 
matter  of  course  under  tlie  seal  of '  the  court  dated  and  tested  of 
the  day  of  issue  and  m.ade  ret'ornable  on  a  day  certain  (e::cept  Sun- 
day) in  term,  time  or  vacation,  not  less  than  ten  days  from  the 
issuing  thereof. 

Mich.  Ch.  R.  2.   c,  ■ 
W'iien   there  p.re  several  defendants  more  th.an  one  subpoena  may 
issue  for  convenience  in  service.   The  .lames  of  all  the  defendants 
must  be  inserted  in  the  subpoena. 

Mich.  Ch.  R.  4,  a. 

Richardson  v.  Thom.pson,  41  111.,  202. 
Formerly  the  subpoena  required  the  defendant  to  appear  under 
a  certain  penalty,  ;::entioned  therein,  but  to  remove  tV;e  lander  of 
mistake  amon^  iefendants  ignorant  of  the  -'..eaning  of  this  co.njnand, 
the  i-ules  now  provide  that  z:-e   penalty  shall  be  omitted  and  the 
defendant  shall  be  notified  simply  that  a  bill  hasbeen  filed  and 
that  unless  he  appears  v/ithin  a  -iven  tim^e  his  default  may  oe 
entered.   This  same  rule  also  requires  that  there  shall  oe  xinder- 
written  a  notice  desiiTnatin;;;  the  defendants  against  whom  a  personal 
decree  is  desired. 

Llich.  Ch.  h.  4  c,  d. 

U.  S.  ,  i.ule  12. 


IX.  EQUITY     PDiCADIiW      .•IJD     PH-.CTIC2.  52. 

In   the  Ur.ited  States  court   "fi.en   Vr.e   bill   I--?  filed  a  praecipe 
must   also    oe  filed  •:rith   t\e  clerk,    directing  the  issuance~"oT  a 
subpoena,    and  na^.in^   the  n.:le  io.y  to  which   it    is  made   retumaole, 
wliioh  riust   be    the   first   or    second  rule  day  occuring  twenty  days 
after   its   issuance, 

U.    S.    Rules    7,    11,    12. 

WHEN  IS    SUIT   COLCSihlCiD. 

A   suit   in    eQuity   is   conr::enced  v/lien  a  bill   of   con.plaint  has 
oeen  filed,    a   subpoena  issued  and  placed  in   t}ie  hands   of   a  proper 
officer  for   service   v/ith  a   bona  fide  purpose  and  intent   to  h-.-ve 
such   suopoena   served. 

united  States   v.    Jc:i.   Lumoer  Co.,    65   5'ed.   ?.ep.    627. 

"  "  "  "        Cas.  Eq.   PI.    &  Pr. 

Crowell   V.   3otsfori,    16  IJ.   J.  I'^q.,    458.  (134.  ■ 

"  Cas.   Bq.   PI.    &  Pr.,    141. 

SilHVICE   OF   TK2   SUBPO-'lEA. 

A   suopoena  issued   out    of   the  United   States   court    is    served 
by   the  -T.c.rsheJ.,    his  deputy'",    or   <:>'/  sorae  other  person   specially 
appointed   oy   th.e  court. 

U.    S.   Rule  15,      Re.    St.    ^   922. 
It   is   served   oy  tine  officer  .'nald-ng  the  service  delivering   a 
copy    thereof   to    the   defenda-nt  personally,    or  "by  leavin;:  a  copy   at 
his  usua.1  place  of   fJoode,    with   so.;:e   adult   person  who   is    a  me.r^osr 
or    resident   in   tjie   f?.'jrdly. 

U.    S.   Rule   13. 

i-hoeni;:  Ins.    Co.    v.   ¥ulf,    9  Biss.    (U.S.)    235. 

"  "         "  "        Cas.    H;q.   PI.    £,  Pr.,    144. 

In  :*Aic:ii2an  a   subpoena  issued  by  a  circuit   court   in  chsnceri'- 
ma^'-  be    served  an^nvliere  within   the    state  on  or   oefore   f-ie   retLurn 
d:?.y   th'.ereof .      It   ;nay   be    served  ''oy   the   sh'.eriff   of   ai'^y  county 
or   oy  Bxiy  other  person.      It   is    served  oy  delivering  a  copy  of 
the  writ    subscribed  by   the   complainai'.t,   his   solicitor,    the   officer 
or  person  serving  the  ssnie,    inscribed  copy  rjrxd   sh.o'wing  the   orig- 
in:-l.    under   tlie    seal  of   the  court,    z.t   the   tiiiie  of  such  delivery, 
to    th.e   defendajit. 

F-i  ch, .    Chi .   Rul  e   4    b  . 

Crevelin-  v.   Hoore,    3-j  l'/j.ch.,    5o3. 

Soule  v.^Kough,    45  hlich. ,   418-422. 
If  sen,-ice   is  :.'-ade  'by  an  officer  he  rrehes   a:a  official   return 
of   the   fact.      If   service   is  made   oy  a  person  dele^^ated  oy  tne 
United  States   court,    or  by  a  private  person   in   this   state,    the 
return  of   service  must    oe  under  Ocith. 

U.    S,   Rule   15. 
If   a  subpoena  is   returned  not   served  upon  a  defendant,    t::ie 
contplaina^it   is   entitled   to    anof-'er   subpoena  a^Tainst    such,  defendaiit, 
until   due   service   is  r.ade. 

U.    S.   Rule   14,  Iviich.    Rule   4   a. 


IX.  EQUITY     PIxSACIImG     Aiv^     PR.-CTICE.  53. 

The   statutes   of   this  state  provide   tliat  \iien  personal   service 
cannot    ae  had  on  account   of   the   defendant  bein^  a  non-resident 
absent   frorr.  liis  home,    or   concealed,    that   substituted  service  may 
be  obtained   oy  publication. 

Ho7/.    St.    §§    6670-6686. 

The  United  States   statutes  provide   for  substituted   service 
'jy  publication  in   suits   fo    enforce  a  lien  upon,    or   clai-m  to,    or 
to   remove   s^.y  incimorvnce,    lien  or   cloud,    upon   t:.e   title   to   any- 
real    or  personal  property  within   the  district  whersin   ti  e   suit   is 
orou':!;ht,    if   oi:e   or  .-ore  of    t!:e   defendants    shall  not   ce   an   inliabit'- 
ant   of,    or   found  within  the   district. 

18   Statutes   at  Lexje,    47i?., 

Under   the   united  States   statute  when  there  hcis    been  suosti- 
tuted   service   the  defendant  .Tia-v  appear  within  one  year,   have   the 
decree   opened   and    be  pennitted   to    rlefend.      Under  the  Zf'ichi  ,an 
str.tute  '}\e  has   for   tl.at  purpose    seven  years,    unless  notice   of   the 
decree  has   been  served  upon  hirt,    in  w'lich   event   the   time   within 
\vi\ic}:    the  decree  may   be  opened   is   limited  to   one  year. 

Wr^en  tiie  plaintiff  l^as   obtained  personal    service  upon  the 
defendant  of   tli.e    subpoena,    or   substituted   service,   he  has   com- 
pleted in  full    the   lirst   step    in  a  suit  in   equity.      The   suit,   how- 
ever,   v/as  actually  conir.enced  by  filing  t'^e   bill   issuin;:;  a   subpoena 
and  placin-r  it    in   the  harids   of   an  officer  for   service. 

Peck  V,    Germain  P.    Ins.    Co.,    102  Llich.  ,    52. 

The   defendant  having  been    served  with  process,    tlie   ru.les 
require   that  he  sjiall   appear  anl  defend   by  demurring,    plsadLnj,    or 
answering  v/ithin  a  certain  time.      At   the  present   time   if   the   ae- 
fendai'.t   is  not   laborin,;^  under  some   ^jersonal    disability  it    is    seldom 
necessary  to   the  plaintiff's   cr.use   tliat  lie  s'lould  appear.      There 
may   still   be  cases,   however,   when  discovery  is  required,    and   in 
such  a  case   the    iefendant  m.ay   be  comiiJelled  to    appes-r  by  attach- 
ment. .    U.    S.   hule  18. 

Riopelle  v.    Doellner,    26  Mich.,    102. 
TL.ompson  v.    ^Vooster,    114  U.    S.    104, 

EKTSiiING  DEiSiTriA-^T'S  lEFAULT. 

If  the  defendant  fails"  to   appear,    or,   havin;^   appeared,   fails 
to    dezraar,   plead,    or   answer,    his   default   tliereior  may  be   entered, 
and   the  cause  proceed  _ex  paxte. 

If  the  defendant's  default  is  e.:tered  for  his  not  appearing 
ai-.d  sunswering,  pleadin.':  or  demurring  witMn  the  prescribed  time, 
the   effect   is   the  3a.me  as   thou':j;h  he  had   appeared  and  answered, 

ad-mdtting  all   tlie  m:aterial   alleviations   of   the  bill, 

Thompson  v.    V/ooster,    114  U.    S,,    104, 

"  "  Gas.   hq.   PI,    5;  ?r.,    147. 

vVard  V.    Jev/ett,    ".Valh.    Ch.,    19,    45, 
Covin  V.    Cole,    16  Kich.  ,    S23. 
A  decree  ma^'-  then   be    tolzen  by  ti.e   complainant,    termed  a 
decree  pro   confesso.      Such   decree  m^ust    be   liir.ited   strictly  to    the 
case  ma'3e~^by   the   bill.      Those   allegations,   t-nd   those  only,    has   the 


IX.  aqUITY     PLEAD  nCG     AiJD     PRACTICE.  54. 

defendant  by  his   default  admitted   to   oe    true.      If,    therefore,    the 
cor^iplainant    si:ould  find  it   necessary  to  amend  his   bill   and  add  new 
i2-iaterial   allegations,    the   effect   of   the   ar,:end-nient   will  "be   to   vio- 
late  the  order   talcing  the  bill  as   confessed,    and  new  process  nust 
issue   a-id  be   served  upon  defendant   and  the   same  proceedin.js  had  as 
thoug]'!   the  suit  had   been  commancei  de  novo. 

Harris  v.   Deitrich,   "S^  KIcH.  ,    366. 
If  the  order   to   tahe    tiie   Dill   as  confessei   is   entered  for   de- 
fault of   tr.e   defendant's   appearin-,    the  cause  proceeds   ex  parte, 
and    tlie   defendant    is  not   entitled   to  notice   of  further  proceedings, 
Diit   if  his  default   is  for   not   answering,   pleading;  or  demurring 
af'.er  lifving  appeared,    the  cause  proceeds   ex  parte   as  before,    but 
the  defendant   is   entitled   to  notice   of  eacTr~3UQ sequent   step   in 
the   ca-se.  llich.    Ch.   Rule   15,   Lavv  R. ,    35. 

'v7arren  v.    Juif,    38  Pich. ,    662. 

v/c:.tson  V.   Hinc}::nan,    41  l.lich, ,    716. 
The   entry  of  an  order   tahinr-;  a  bill  for   divorce  pro   confesso 
on   account   of  defendant's  default    in  not  appearing  or   answering, 
pleading  or   demur rin.;^;,    does  not   have  t]ie   effect   of  iiifikin':   the   alle- 
gations  in   the  bill  evidence  for   the  complainant.      The  public   are 
interested  in  preserving  the  marriage  contract.      As  v/e  have   seen, 
such  bills  -must   be  verified.      They  nust    contain  distinct   alle.p;a- 
tions   that    the   oill   is  not   filed  in  collusion  v/i-ch  the  defendant, 
directly  or   indirectly,    and   t-ie   allegations  contained  in   tl^e  oill 
as    to    th.e   grounds   of  divorce  .".lui^    be   establis/ied   oy  satisfactory 
proof.      And  the   officer  before  whom  t2ie  proofs   are   ta-l:en   is   re- 
ciuirei   to  make   such  full   inquiries   of  the  witness  as   shall  be 
necessary  tc   arrive  at   all   the  material   fs.cts   in  tiie   case, 

EmTiions  v.   EmT.ons,    V.'alk.    Ch.  ,    532. 

Pugsley  v.  Pursley,  "^   Pnige,  639. 
If  one  of  the  defendants  is  inco;ripetent  to  appear  in  person, 
bein^  rtii  infant,  non  compos,  etc.,  ^e  i.iust  appear  by  a  guardian 
ad  litem,  and  if  he  her^lects  to  so  apper.r,  the  court  will  upon 
application  oy  petition  of  the  plaintiff  appoint  such  guardian 
and  the  mere  neglecu  of  the  infant  or  ether  incompetent  person 
does  not  authorise  t]:e  plaintiff  to  enter  a  default.   If  there 
is  an  infant  defendant  the  complainant  will  not  be  entitled  to  a 
decree  upon  the  bxll  simply  taken  as  confessed.   11  must  estaolish 
his  case  oy  testimony,  for  the  reason  that  oji   infant  is  a  ward 
of  tre  court. 

Thayer  v.  Love,  'wai::.  Ch^--.,  200. 

Chandler  v.  McKinley,  6  Llich.  ,  216. 

Smith  V.  Smith,  13  I.ach.,  258. 
If  one  of  the  defendants  is  oeyond  the  jurisdiction  of  the 
court,  or  has  secreted  nimself  zc-   that  persons.!  service  cannot  oe 
had,  the  statute  provides  for  suostituted  service,  steps  must  be 
taken  to  make  such  substituted  service.   Affidavit  is  :rade  that 
t"ne  defendant  is  a  nonresident,  or  that  ]ie  has  concealed  himself, 
etc.,  and  upon  this  affida^'it  tr:e  court  r;ial:es  sji   order  that  the 
defendant  appear  and  ansv;er  wit?:in  the  time  prescrioed  in  the 
statute  and  that  notice  of  such  order  be  published,  etc.,  in  a 


IX.  EQUITY     PLEADIira      A^vD     PR.\CTICE.  55. 

certain  newspaper,      Tlie  statute   specifies   the   time  -within  wJiich 
the  order  must   be  published  cJid   the  length   of    time.      If  the   iefend- 
and  does  not   appear  within   the  ,:eriod  fi:ced  "by   the   order  and  answer 
upon  filing  proof   of   t>iat   fact   an  order  may  be   entered   taking  the 
bill   as  coni'essed. 

2  How.  An.  St,  §§  6670,  6671,  6672. 


#«*'»«»»»#«'«'»«•» 


0 


C  K  A  P  T  E  ?.  X. 

.^PPFAPA"CF  CF  Dr;^F"D^* '"^ ,  FTC. 

The  defendant  having:  loeen  served  with  process  must  cause  his 
appearance  to  be  entered  in  the  coraiaon  order  'book  within  the  time 
prescribed  by  the  rules, and  serve  a  notice  of  such  appearance  upon 
complainant,  if  he  would  prevent  his  default  being  entered  and  an 
order  made  taking  the  bill  as  confessed. 

1  Parb.  Ch.  Pr . ,  73; 

Jennison  Ch.  Pr.,  40; 

I'ich.  Rules  5  a,  7  b; 

U.  ^  .Pules  17,  i: . 

Flint  vs.  Comly,  95  "ie.  251. 

"     "     "     Cas.  Fq.  PI.  <':   Pr .  i:-5. 
Under  the  !'ichican  practice  the  defendant  must  appear  within 
fifteen  days  after  being  served  by  subpoena  and  serve  notice  of 
such  appearance  upon  complainant's  solicitor.   Fe  may  demand  a  copy 
of  the  bill  in  which  case  it  must  be  served  ;vithin  fifteen  days 
after  such  demand. 

Ch.  Rule  5  a,  b,  c. 
The  defendant  having  appeared,  if  the  occrsion  exists,  may 
except  to  the  bill  on  the  g-ound  thr-t  it  contains  impertinent  or 
scandalous  matter,  and  in  the  United  F^tates  court  he  may  also 
except  if  it  is  made  "..nnecessarily  prolix  by  recitals  of  matters 
not  pertinent,  o:''  relevant  to  the  real  cause  of  action,  or  by  need- 
less repetitions. 

Upon  exceptions  of  this  nature  being  filed  tliey  n?y  be  refer- 
red to  a  master.   If  the  miaster  or  the  court  find  that  the  excep- 
tions are  well  taken,  the  objectional  matter  will  be  expunged  at 
the  expense  of  complainant,  and  he  r.^.y  be  adjudged  to  pay  all  the 
defendant's  costs  up  to  that  time. 

U.  ?^  Piaes,  25,  25,  27. 
Impertinences  are  wholly  irrelevcnt  or  unnecessary  rlleg'^tions 
and  statem.ents,  and  they  have  been  described  to  be  "when  the  re- 
cords of  the  court  are  stuffed  with  long  recitals,  or  with  long 
digressions  of  matters  of  fact,  v/hich  are  altogether  unnecessary 
and  totally  immaterial  to  the  matter  in  question;  as  where  a  deed 
is  unnecessaril:-'  set  forth  in  haec  verba."   The  test  as  to  whether 
a  particular  allegation  is  or  is  not  impertinent  is  t'.is,  Is  it 
material?   If  it  is  not  Fiaterial  it  is  im.pertinent ,  but  its  imma- 
terialit   must  clearly  appear.   If  the  court  is  in  doubt,  the  matter 
will  not  be  striken  out  as  im.pertinent. 

Richards  vs  .  .^ttcrney-Senl . ,  12  CI.  and  :^1.,  30; 

Railroad  vs.  Stev/art,  4  C.  E.Oreen,  345; 

'Tlialey  vs.  Norton,  1  Vern.,  483; 

Clark  vs.  Periam.,  2  atk.  353;  537. 

Foods  vs.  I'orrell,  1  Johns.  Ch.,  103. 


A.  EQUITY  PLrADII'C  AY.D   PRACTICE.  57. 

Scandal  is  an  irrelevant  allegation  of  some  matter  which  is 
unbecoming  the  dignitj-  of  the  court  to  hear,  or  is  contrary  to 
good  morals,  or  which  charges  some  person  witli  the  commission  of  a 
crime  not  necessary  to  be  shown  in  the  cau.se;  in  short  any  unneces- 
sary allegation  bearing  cruelly  upon  the  meral  character  of  an 
individual.   Nothing  is  scandalous,  however,  which  is  relevant. 
A  man  may  be  called  a  thief  when  that  fact  is  pertinent  to  the  is- 
sue involved. 

Fisher  v.  Owen,  8  Ch.  Div.,  545; 

Gleaves  v.  I.lorrow,  2  Tenn.  Gh.,  592; 

Goodrich  v.  Rodney,  1  I 'inn.  ,1S5; 

Desplaces  v.  Goris,  Fdw . ,  Ch.,  550. 
The  objection  to  the  bill  for  impertinence  must  be  taken 
before  answering  or  submitting  to  answer,  1.  e.,  obtaining  an  ex- 
tension of  time  within  ".Thich  to  answer. 

But  an  objection  for  scandal  may  be  taken  after  answer. 
The  reason  for  the  distinction  is  that  impertinence  involves  merely 
a  question  of  costs,  while  scandal  is  regarded  as  an  indignity  to 
the  court . 

Anon,  2  ^resey,  Sen.  G30; 

Ferrar  v.  Ferrar,  1  Dick.,  175; 

Anon,  5  Vesey,  Jr.,  5  36; 

Jones  V.  Spencer,  2  T'enn.  Ch . ,  77G. 
And  the  objection  to*  the  bill  for  scandal  n?r    be  made  by  one 
not  a  party  to  the  suit . 

Coffin  V.  Cooper,  5  Ves . ,  513. 

"'llliaras  V.  Douglas,  5  Beav.,  82,  o5 . 

D I SC  L.A  II TP. 
If  tiie  defendant  has  no  inte:''est  whatever  in  the  subject- 
matter  of  the  suit,  and  never  had  any,  and  never  claimed  to  ha^-e 
had  any,  he  riay  answer  by  disclaiming  all  interest  in  the  proceed- 
ings. A   simple  disclaimer,  however,  is  seldom  sufficient,  except 
in  those  cases  where  the  defendant  has  been  made  a  party  by  mis- 
take.  If,  as  a  matter  of  fact,  although  the  defendant,  may  not, 
at  the  time  the  suit  was  commenced,  have  any  interest  in  the  sub- 
ject-matter of  the  controversy,  if  he  once  had  and  has  since  part- 
ed with  such  interest,  he  may  be  called  u;  on  to  disclose  to  v;hom 
he  has  assigned  the  interest,  that  the  complainant  may  male  the 
assignee  a  party  defendant . 

Spofford  V.  f banning,  2  Fdw.  Ch.,  558; 

Ellsworth  V.  Curtis,  10  Paige,  105. 
A  mere  disclaimer  is  not  sufficient  if  the  defendant  is  charg- 
ed with  being  a  party  to  a  fraud,  or,  if  the  allegations  of  the 
bill  shew  that  the  defendant  has  so  entangled  himself  up  with  the 
whole  transaction  that  the  complainant  was  obliged  to  r.ake  him  a 
party,  for  in  such  a  case  the  complainant  is  entitled  to  an  answer 
explaining  the  defendant's  conduct. 

Ishan  V.  Tliller,  44  !■".  J.  Eq.  Gl; 

"    "     "      Cas.  Eq.  PI.  .'c  Pr .  ini; 

Graham  v.  Cooper,  9  Sim.,  95,  102; 

Glassington  v.  Thwaits,  2  Fuss.,  453, 


Y.  FP^iT^^'  Vl.r'm'^^-    /^"D  PV^C^lCT..  56. 

And  whenever  the  complainant  is  entitled  to  make  any  pe-'^son  a 
defendant  in  any  ~iven  case,  such  person  cannot  avoid  the  suit  by 
a  disclaimer,  and  if  the  conplainant  is  entitled  to  un   answer  he 
must  answer. 

Glassinrton  v.  Thv/aits,  2  Kuss . ,  45S,  4n2; 

Dohree  v.  Ficholson,  22  L.  ':' .  V.    ?.,  744; 

Isram  v.  Killer,  44  T.    J.  L.,  ol; 

Bromberg  v.  ''yer,  69  ^la.,  22; 

Craham  v.  Coape,  3  I'yl.  •'':  Or.,  635. 
If  there  is  no  objection  to  the  bill  on  the  ground  that  it 
contains  impertinent  or  scandalous  matter,  and  the  defendant  de- 
sires to  interpose  a  defence,  the  next  step  for  him  to  take  will 
depend  entirely  upon  the  nature  of  his  defence.   For  example,  A 
r.ay  have  filed  a  bill  to  enforce  a  contract  made  with  B  by  the 
terms  of  "/hich  3  agreed  to  sell  a  certain  parcel  of  land  for' a 
given  sum  to  /.   3's  defence  may  be  that  the  contract  is  void, 
not  having  been  reduced  to  writing,  and  the  fact  that  it  was  not 
reduced  to  writing  may  or  may  not  appear  upon  the  face  of  the  bill, 
or  3's  defence  may  be  that  the  contract  is  void  on  account  of  some 
fraud  or  imposition  practiced  by  A   whereby  he  was  induced  to  exe- 
cute the  contract--  or  in  other  v/ords,  the  defence  may  consist  of: 

1.  Some  objection  to  the  case  made  by  the  bill  v;hich  appears 
upon  the  face  of  the  bill,  showing  that  the  complainant  has  no 
cause  of  action;  or, 

2.  Tliere  may  be  some  fact  not  appearing  upon  the  face  of  the 
bill,  and  not  go.'ng  to  the  merits  of  the  cause,  which  will  prevent 
the  court  from  taking  cognizance  of  the  cau.se;  or, 

5.   "Tie  defence  m.ay  go  to  the  merits  of  the  com.plainant 's 
cause,  the  defendant  claimiing  that  u^on  all  the  facts  and  circum- 
stances that  the  plaintiff  is  not  entitled  to  anj*  relief. 

These  several  defences  have  each  a  particular  form  in  which 
they  are  to  be  presented. 

If  the  defence  is  based  upon  some  ma.tte^  which  appears  upon 
the  face  of  the  bill,  it  is  by  demurrer. 

Insurance  Co.  vs.  Field,  2  Story  50. 

If  the  defence  rests  upon  some  one  particular  fact 
not  apyear  upon  the  face  of  the  bill,  it  ma   be  by  plea, 
brings  to  the  attention  of  the  court  the  special  defence 
upon.   The  plea  is  a  special  answer. 

Story  Pq.  PI.   437. 

If  the  defence  rests  upon  the  actual  rierits  of  the 
case,  the  defence  is  by  a  general  answer. 
Story  Eq.  PI.   437. 

DEinjF.-REP. 

A  demurrer  is  the  proper  mode  of  defence,  when  the  ground  of 
defence  is  a  defect  in  the  frame  of  the  bill  or  in  the  case  made 
by  it,  or  the  matter  contained  in  i^v . 

Jones  V.  Earl  of  Strafford,  3  P.  "'ms . ,  7S,  SO; 

Ilitfords'  Eq.,  206. 


•.•hich   does 

which 

relied 

defendant 's 

V,  TQVl'"''   ?V''Tjl"^r    .""D  ^"'-'"icr.  59. 

Lord  Coke  says  that  the  v;ord.  demurrer  cories  from  the  latin 
deraorari,  to  abide;  and  therefore,  he  that  denv.rreth  in  lar,    is 
said  to  abide  in  la\7;  moratu'--,  or  Qerr.o:'"atv.r  in  le,^e .   The  pleader 
stoi'.  s,  abides,  den/rs,  in  short,  sv."jmits  the  case  to  the  court  and 
der.-.rnds  of  the  court  its  jud;;7er.ent ,  whethe--^,  in  law,  he  can  be 
recvired  to  proceed.    Co.  Litt.  71  b;    3  Black.  Com.,  514. 

The  demurrer  alle-^es  in  substance  that  if  the  matters  con- 
tained in  the  bill  v.-ere  true  they  do  not  sustain  the  complainant's 
contention,  or  that,  for  some  re-'Scn  apparent  on  the  face  of  the 
bill,  or  because  of  the  omission  of  some  matter,  which  oi'^ht  to 
be  contained  therein,  or  for  want  of  some  circumstance  which  ouf;ht 
to  be  attendant  thereon,  the  defendant  ou'-;ht  not  to  be  compelled 
to  ans  ver,  and  it  therefore  der^ands  the  judgement  of  the  court 
vrtiether  the  defendant  shall  be  compelled  to  ansv,-er  the  complain- 
ant's bill,  or  that  particular  part  of  it  to  which  the  demiurrer 
pprlies.     :'itford's  Fa.  5G;   T'ich.  Ch .  ^.  9. 

"'hen  it  is  clear,  absolute  and  certain,  that  taking  the 
:j"arces  made  in  the  bill  to  be  true  the  bill  will  be  dismissed  at 
the  hearing,  a  demir^rer  v.'ill  lie,  but  net  if  there  is  uncertainty 
in  that  regard. 

/-tterson  v.  Hair,  2  ''es  . ,  94; 

5.  C  .  4  Bro.  C.  C.  ,  270; 

Favenden  v.  Ld.  .Annesley,  2  Sen.  f:  T.ef.,  607; 

Brooks  V.  r'ev/itt,  3  '^'es . ,  235. 
But  while  the  dem.u-^rer  assumes  and  confesses,  for  the  pur- 
poses of  the  arj3ument ,  that  the  alleviations  in  the  bill  are  ture, 
the  adm.ission  extends  only  to  such  r.atters  as  are  well  pleaded, 
matters  of  fact,  and  not  matters  of  law,  nor  false  allegations  of 
fact  of  -vhich  the  court  is  bound  to  take  judicial  notice.  And 
when  there  are  matters  of  fact  pleaded  which  are  repugnant  to  some 
other,  that  one  is  admitted,  v/hich  is  of  least  benefit  to  the 
pleader. 

Looke  V.  Folle,  3  ^'es . ,  4-7; 

Campbell  v.  Tackay,  I'y.  •':  Cr.,  ?0Z,    613; 

^"ales  V.  Bank  of  I'ich.,  Har .  Ch . ,  308; 

Cxriffing  v.    Oibb,    2   ^lack  U.    ?. . ,    519; 

Raby  V.  Cositt,  73  111.,  638; 

Croft  V.  T'hompscn,  31  N.  -.,  55o; 

1  r-reen.  Fv.      4,  5. 
""hile  the  demurrer  admits  all  relevant  allegations  well  plead- 
ed it  does  not  adm.it  conclusions  drawn  from,  facts  stated. 

Lea.  V.  Robeson,  12  Gray  280; 

Interstate  Land  Co.  v.  I'axwell  Co.,  139  U.  S.,  5-39; 

'National  Park  ""^k .  v.  Halle,  30  111.  «rp.  17; 

Co-"nwell  V.  Green,  43  Fed.  Hep.  105. 
i-xi  allegation  of  fraud  is  not  admitted,  "v.it  only  the  facts, 
fraud  being  a  conclusion  of  lav;. 

Fogg  V.  Blair,  139  IJ .  ="■ . ,  llo ; 

Preston  v.  Smith,  26  Fed.  Pep.,  684; 

\7alton  V.  "'eitwood,  73  111.,  125. 


X.  F'^''J'"Y  V'^.T"'T)J.'''C.    f'T)  V^'C^IC^.  60. 

''^'he  d^crr-^-^e's  ney   ^o  to  the  ".vhcle  bill  or  to  only  a  part  of 
the  bill.   "Hiere  me.y   be  a  demurrer  to  the  ^vhole  bill,  or  demurrers 
to  parts  of  the  bill,  and  demirrrer  to  parts  of  a  bill  ma:'  o-^.^erlap 
each  other.   If  the  demurrer  does  not  go    to  the  v/hole  bill  it 
must  point  out  clearly  the  part  of  the  bill  covered  and  not  by 
way  of  exception,  as  "all  of  the  bill  except  those  parts  ansv/ered. 

Pobinson  v.  Thompson,  2  Ves .  -^:  ".  lib; 

Salkeld  v.  Science,  2  A^os . ,  107. 
"hen  the--'-6  are  several  demurrers  to  the  several  parts  of  the 
bill  and  some  are  /ood  aiid  othev^s  bad,  those  that  are  rood  ".vill 
be  sustained  and  the  o-.-hers  overruled.  VJhen    there  is  a  demurrer 
to  the  f/hole  bill  and  a  demurrer  to  a  part  of  it  and  the  demurrer 
to  the  -yhole  bill  is  overruled  and  the  other  sustained,  so  much 
of  the  bill  as  is  covered  b:"  it  is  dismissed  and  the  defendant 
must  answer  the  residue. 

Oiant  Pow.  Co.  v.  Oal .  Pow .  "'orks,  98  U.  S.,  12C; 

Canton  Warehouse  Go.  v.  Potts,  68   Miss.,  637; 

Brandon  Ilfg.  Co.,  v.  Pime,  1^  Platch.,  371, 
.4  demurrer  may  be  to  the  relief  P'-'ayed,  or  to  the  discovery 
or  to  both.   But  the  demu-^rer  m^ust  not  be  both  to  discovery  and 
relief  if  the  complainant  is  entitled  to  either;  if  the  demurrer 
is  to  the  v/hole  bill  and  the  complainant  is  entitled  to  either 
discovery  or  relief  it  will  be  overruled. 

Livingstone  v.  -tory,  9  Peters,  538; 

1^'right  V.  Dame,  1  Ket  . ,  237-  241; 

rolmes  V.  "-"olnes,  56  ^^t . ,  j25,  537; 

Laight  V.  Ilor^an,  1  Johns.  Ces . ,  434; 

Hir;inbotham.  v.  Burnet,  5  Johns  16-.:; 

"       "      "     Gas.  Eq.  ?1.  ":  ?r.  163. 


XI.  EQUIT''  PLE.4Dir:0   AND  PRACTICE.  61. 

CHAPTER     XI. 

DEITRFFP   (Continued)  . 

A   dernurrer  to  relief  is  in  effect  submitting  the  proposition 
that  the  plaintiff  has  not  made  or  stated  such  a  case,  for  some 
reason,  appearing  on  the  face  of  the  bill,  as  entitles  hin  to 
relief.   It  raa3'  the^-efore  be  : 
I.   "o  the  jurisdiction. 
II .   To  the  person. 
III.   "^o  the  matter  of  the  bill  either  in  substance  or  in  form. 

I.  JUPISDIC^IO''. 

A    demurrer  to  the  jurisdiction  m.a;^  be: 

1.  That  the  case  made  by  the  bill  does  not  fall  within  that 
of  any  class  of  causes  over  which  the  court  ^.ssumes  jurisdiction. 

A  discussion  of  the  cases  that  fall  under  this  head  properly 
belongs  to  the  subject  of  equity  jurisdiction. 

Stephenson  v.  Davis,  3G  I'e . ,    73,  74; 
Cookney  v.  'Anderson,  31  Beav.,  4.32. 

2.  That  the  subject-matter  of  the  suit  is  within  the  juris- 
diction of  some  other  court. 

If  it  appears  that  the  subject  matte:"  of  the  suit  is  within 
the  exclusive  jurisdiction  of  some  other  court,  the  probate  court, 
etc.,  or,  that  the  complainant  has  as  effectual  and  complete  a 
recedy  at  law  as  in  equity  the  bill  is  dcnu-rable. 

Lynch  v.  "Jillard,  0   Johns.  Ch.,  342; 
,  Bank  v.  Lee,  11  Conn.,  Ill; 
Hammond  v.  T'essinger,  9  Sim.,  527. 

II.  TO  T'T  ?T:^^Oy  . 

If  it  appears  on  the  face  of  the  bill  that  the  complainant 
cannot  maintain  the  s'uit  on  accoi-.nt  of  some  personal  disability 
under  which  he  is  laboring,  for  instance,  that  he  is  an  infant, 
or  for  any  other  reason  incompetent,  or  that  the  defendant  is 
privileged  from  being  sued,  i.  e.,  the  state,  etc.,  the  objection 
can  be  taken  by  demur-^^er. 

III.  TO  THE  TfAT'^T'-p  OF  "RE  PILL.' 

Demurrers  ^rising  from  objections  to  the  matter  of  the  bill 
are  either  to  the  substance  of  the  bill  or  to  the  form  in  which 
it  is  stated.  Since  the  complainant  is  required  to  state  facts 
in  his  bill  v.'hich  entitles  him  to  ^elief  assi'.ming  that  they  are 
trtte,  the  omission  of  any  essential  averment  v;ill  sustain  a  de- 
m.urrer  . 


XI.  EQUITY  PLEy^DINCr  AVD   PR/^CTICE.  62. 

Demurrers  to  the  si'.bstance  are: 

1.  ""hat  the  rl?intiff  has  no  interest  in  the  suoject. 

2.  That,  the  defendant  is  not  answerable  to  the  plaintiff. 

3.  That  the  defendant  has  no  inte-'^est. 

4.  That  the  plaintiff  is  not  entitled  to  the  relief  he  has 
prayed. 

5.  That  the  value  of  the  suhj ect-matter  is  insufficient  to 
Cive  the  court  jurisdiction. 

6.  That  the  bill  does  not  eir.brace  the  whole  of  the  subject- 
matter  . 

7   That  there  is  a  want  of  proper  parties. 

6.   That  the  bill  is  multifarious. 

9.   That  the  plaintiff's  remedy  is  barred  by  lapse  of  time. 

10.  The  Statute  of  Frauds. 

11.  '^hat  there  is  another  suit  pending  for  the  seme  matter 
between  the  same  rarties. 

1.   If  there  are  several  plaintiffs  some  of  them  having  an 
interest  and  others  none  in  the  subject-matter,  a  general  demurrer 
to  the  whole  hill  is  a  good  defence. 

■■'ing  of  Rpain  v.  J'achado,  4  Russ.,  224; 

Clarkson  v.  DePeyster,  3  Paige,  336-  339; 

/•twell  v.  Ferrett,  2  Blatch,  C.  C,  39. 
2  ?:  3.   If  tlie  plaintiff  has  an  interest  the  bill  must  show 
the  defendant  answerable  to  him. 

Ld.  Oxbridge  v.  Stoveland,  1  '"'es .  Sen.,  55; 

Crossing  v.  Honor,  1  Vern . ,  180; 

Vmite  V.  Sm.ale,  22  3eav.,  72. 

4.  V-Tien  the  plaintiff  prays  merely  for  some  special  relief 
to  which  he  is  not  entitled,  or  to  any  relief  of  the  same  nature. 

^'ollins  V.  Forbes,  10  Cal.,  299; 
Sleeker  v.  Bingham,  3  Paige,  246; 
Dike  V.  rirant ,  4  R.  I.,  265; 
Sayles  v.  Tibbitts,  5  R.  I.,  285. 

5.  If  it  does   not  appear  on  '.he  face  of  the  bill  that  the 
matter  in  controversi'  is  sufficient  to  give  the  court  jurisdiction, 
the  defendant  may  move  to  strike  the  bill  off  from  the  file  or 
demur . 

Carr  v.  Inglehart,  3  Ohio  St.,  438; 
JIcElwain  v.  Willis,  3  Paige,  50-3; 
S.  G.  9  '"'end.,  548. 

6.  The  court  will  not  permit  a  bill  to  be  brought  for  a  part 
of  the  matter  onl;^,  but  requires  that  every  bill  shall  be  so  framed 
as  to  afford  ground  for  decision  upon  the  whole  m.atter  at  one  and 
the  same  time. 

Panfoy  v.  Panfoy,  1  ''^ern.,  29; 
Margrov  v.  Le  Hooke,  2  Vern,  207; 
Jones  v.  Smith,  2  ''es . ,  572. 

7.  V.Tien  it  appears  upon  the  face  of  the  bill  that  the  inter- 
est of  persons  will  be  effected  who  are  not  made  parties  the  de- 
fendant may  demur. 


XI.  EQUITY  PLFADI^-'"-  ATT)   PF^'CTICr.  63. 

ystt 'y-r-enl.  v.  Poole,  •*  I'..    &.   C .  ,    17; 
T^obinson  v.  Smith,  Z   Paire,  222; 
^tory  Eq.  PI.   Sec.  343. 

8.  A  demurrer  for  mult ifariov.sness  roes  to  the  ".vhole  bill 
and  it  is  not  necessary  to  specify  the  particv.lar  parts  of  the 
bill  which  are  multifarious. 

Diramock  v.  Pixby,  20  Pick.,  3Gb; 
Gibbs  ^^  Classett,  2  Gill.  ■'-.   J.,  14; 
Boyd  V.  Hoyt,  5  Paige,  65. 

9.  The  Statute  of  Limitations  of  21  Jac .  1,  c.  16,  did  net 
in  terras  include  equitable  actions,  but  courts  of  equity  have  been 
disposed  to  treat  a  claim  as  stale  that  was  barred  at  law,  and  in 
short  to  be  .froverned  b:'  the  statute. 

Filler  v.  riclntyre,  6  Peters  61; 
Denny  v.  Oilman,  2G  Me.,  149,  154; 
Pobinson  v.  Fook,  4  i'ason,  139,  150; 
Brown  v.  Btiena  "^"ista,  93  U.  S.,  157. 

10.  If  it  clearly  appears  on  the  face  of  the  bill  that  the 
contract  upon  which  the  complainant  rests  his  claim  is  within  the 
statute  of  frauds,  the  o'-jection  can  be  taken  advantage  of  by 
demurrer . 

Field  V.  Hutchinson,  1  Beav.,  399,  600; 
Crenston  v.  Smith,  6  R.  I.,  231; 
Dudley  v.  Bachelder,  58  Me.,  403,  -06. 

11.  If  it  appears , also,  that  there  is  another  suit  pending 
in  another  court,  in  which  the  complainant  could  o"-tain  the  same 
relief,  the  defendant  may  demiUr  for  that  reason. 

Peareth  v.  Peareth,  5  Jur .  Y.    S.,  60. 
The  grounds  of  demurrer  to  a  bill  by  reason  of  deficiency  in 
matters  of  form  are: 

1.  Omission  to  state  complainant's  residence. 

2.  Feglect  to  state  positively-,  allegations  within  the  com- 
plainant's knowledge. 

3.  Lack  of  certainty-  in  the  bill. 

4.  Failure  of  the  complainant  to  offer  to  do  equity. 

5.  Want  of  counsel's  signature  to  the  bill. 

6.  Neglect  to  verify'  in  those  cases  where  the  statute  or 
rules  require  the  bill  to  be  sworn  to. 

The  above  grounds  of  demurrer  are  simply  an  en".:meration  of  the 
essentials  of  a  bill  in  equity  which  we  have  already  pointed  out. 

DEI-IURRFF  TO  DISCO'^rT-;. 

The  defendant  may  not  only  demur  to  the  relief,  but  he  may 
demur  to  the  discovery  sought  when  the  complainant  is  entitled  by 
his  bill  to  relief.   The  several  grounds  of  demurrer  to  discovery 
are : 

1.   That  the  discovery  may  subject  the  defendant  to  some 
penalty  or  forfeiture.   The  defendant  will  not  be  required  to 
either'  criminate  himself  or  place  himself  in  a  position  in  which 
he  may  be  prosecuted. 


XI.  EQUITY  PLR/iDI-'O  ahd  P^ac^ICF.  64. 

Harrison  v.  Southcote,  1  ■'T'k.,    539; 
Duke  V.  Harper,  66  Ho.,  51; 
Allyn  V.  Fanna,  47  lowp. ,  264; 
TTc^he^son  v.  Cox,  96  U.  S.,  404. 

2.  Because  in  equity'  and  (]Ood  conscience  the  defendant's 
right  is  equal  to  the  complainant's.   If, for  example,  the  defend- 
ant has  in  conscience  as  good  a  title,  but  not  as  perfect  a  legal 
title  as  the  complainant,  he  v/ill  not  be  compelled  to  make  a  dis- 
covery which  will  endanger  his  own  title. 

Howell  V.  >4sham,  Stockt .   (N.  J.  )  81; 
Glegg  V.  Legh,  4  Had.,  104; 
Story  Fq.  P.   Sees.  60o,  604. 

3.  Because  the  discovery  sought  is  immaterial  to  the  relief 
prayed.   The  complainant  is  not  entitled  in  equity  any  more  than 
at  law  to  introduce  immaterial  evidence.   Therefore,  if  he  calls 
upon  the  defendant  to  answer  interrogatories  in  reference  to  some 
matter  which  is  immaterial,  the  defendant  may  demur  to  that  much 
of  the  discovery  for  immateriality. 

Lord  Hontague  v.  Di;draan,  3  Ves .  Sen.,  396,  398; 
Baker  v.  Pritchard,  2  Afk,,    388; 
Hincks  v.  Hilthrope,  1  Vern.,  204. 

4.  Because  the  discovery  would  be  a  breach  of  professional 
confidence.  All   confidential  communications  between  attorney  and 
client,  husband  and  wife,  physician  and  patient,  priest  and  peni- 
tent, may  not  be  disclosed  in  any  proceeding,  either  at  law  or  in 
equity.   And  if  the  plaintiff  seeks  to  have  the  defend:^nt  make 
any  such  disclosure,  he  ma^'  demur  to  that  part  of  the  discovery, 
if  it  appears  on  the  face  of  the  bill  that  the  information  is  in 
fact  confidential. 

State  V.  ?mite,  19  ••'an.,  445; 

Insurance  Go.  v.  Schaffer,  94  U .  S,,  457; 

Bigler  v.  Feyher,  43  Ind.,  112; 

'^arham  v.  Foberts,  70  111.,  19. 

5.  That  the  discovery  relrtes  only  to  the  defendant's  case. 
The  complainant  is  not  entitled  to  obtain  from  the  defendant  a 
disclosi're  of  facts  material  only  to  the  defence.   For  example  , 
where  the  plaintiff  and  defendant  claim  through  adverse  sources 

of  title,  the  one  is  not  entitled  to  the  other's  evidences  of  title 

Ingilby  v.  Shafto,  33  Beav.,  31; 
Joy  V.  I'ekewick,  2  ■''es .  Jr.,  e79; 
Baden  v.  Fore,  2  Ves .  Sen.,  445; 
Moore  v.  Caron,  L.  P.,  7  Oh.  ^^pp.,  94,  note. 

6.  That  the  discovery  might  be  injurious  to  the  public 
interest.   This  ground  of  objection  is  confined  to  information 
which  the  defendant  has  obtained  v;hile  occupying  a  public  or 
semi-publiec  position. 

Bellows  V.  Stone,  18  I'.  H . ,.  465,  485; 

1  Greenl.  Ev .   Sees.  250,  251. 
Any  irregularities  in  the  frame  of  the  bill  which  may  be 
taken  advantage  of  b  demurrer,  v/ill  be  deemed  to  have  been  waived 
if  the  defendant  consents  to  answer. 


XI.  EQUITY  PLF-'-DI""  AVD   PP'C^ICr.  65. 

Reedy  v.  S'^ott,  25  V'all.,  332,  365; 
"'-^^-ard  V.  '"rrne-,  2  ! 'clean,  31C,  5  39; 
Campbell  v.  Foster,  2  Tenn.  Oh.,  -.-02. 

SEPARATE  DEKURRERS. 

The  defenadnat  may  piit  in  separate  and  dis'-inct  demurrers  to 
separate  and  distinct  parts  of  the  hill  for  separate  and  distinct 
causes,  and  in  that  case  one  demurrer  may  be  sustained  and  another 
overruled. 

Each  demiU.rrer  m;ast  be  good  to  so  much  of  the  bill  as  is  cov- 
ered by  it.   If  it  covers  too  much  of  the  bill  it  is  said  to  be 
good  in  part  and  bad  in  part,  and  v;ill  be  overruled.   Deriurrer  is 
a  mere  name  and  designation  of  a  defense  appe?ring  on  the  face  of 
the  bill.   If  that  particular  defence  goes  to  the  whole  bill,  a 
general  demurrer  for  that  cai'.se  is  good.   But  if  the  particular 
defence  appearing  upon  the  face  of  the  bill  does  not  go  to  the 
whole  bill  a  general  demurrer  is  not  good.   If,  for  inst-nce,  it 
appears  that  the  bill  crlls  for  discovery  as  to  several  matters 
and  as  to  one  of  those  riatters  the  information  called  for  was 
obtained  by  the  defendant  confidentially  v/hen  the  relation  of  peni- 
tent and  confessor  existed,  a  demi'.rrer  to  so  much  of  the  bill  as 
calls  for  that  particular  discover;-  Vv'ould  be  good,  but  if  the 
demurrer  was  to  the  ■.v'ole  bill  it  would  still  be  good  as  to  that 
particular  part  of  the  bill  but  bad  as  to  the  residue  of  the  bill 
and  'vould  therefore  be  overruled.   In  other  words  by  demurring, 
you  simxply  announce  that  you.  ha-'re  a  defence  to  the  -.vhole  bill,  or, 
to  that  part  of  it  demurred  to,  as  appears  from  the  bill  itself, 
and  then  you  state  what  that  defence  is,  technically  assign  cause. 
If  that  defence,  the  cause  assigned,  is  good  to  so  much  of  the 
bill  as  you  have  dem.urred  to,  the  demurrer  is  sustained,  but  if 
it  is  not  a  good  defence  to  so  much  of  the  bill  as  you  have  demurr- 
ed to  it  is  overruled,  because  it  is  no  defence  to  a  part  of  the 
bill  covered  bj'  it.   a  demurrer  cannot  be  good  in  part  and  bad  in 
part . 

r.ayor  of  London  v.  Levy,  8  '''es . ,  396,  403; 

Baker  v.  f'ellish,  11  ^'es . ,  63,  70; 

Barstow  v.  Smith,  V.'alk.  Ch .  394; 

Railroad  v.  Schuyler,  17  T .   ".,  392. 
There  may  be  several  defects  in  the  bill,  or,  in  so  much  of 
it  as  is  covered  by  the  demurrer,  and  the  demurrer  may  point  out 
each  of  such  defects;  in  that  case  if  either  of  the  defects  is  a 
good  defence,  although  the  others,  are  not  the  dem.urrer  v/ill  be 
sustained. 

''Tnen  more  than  one  of  the  defendants  join  in  a  demurrer  and 
the  demurrer  is  good  as  to  one   and  is  bad  as  to  the  other,  it  will 
be  allowed  as  to  the  one  and  overruled  as  to  the  fcthers.   It  is 
not  considered  good  in  part  and  bad  in  part,  but  is  treated  as  the 
separate  demurrer  of  each  defendant. 

Mayor  of  London  v.  Levy,  8  ves.,  39S,  403. 

40 : 


XII.  EQUITY  PLEADING  AND  PRACTICE.  66. 

--  :o :  — 

fori:  0^  DFrUPREF, 

The  demurrer  must  be  entitled  in  the  cause.   Indeed,  all  the 
papers  filed  in  a  cause,  or  served  after  the  bill  is  filed,  are 
to  be  entitled.   Following  the  title  is  the  heading,  indicating 
whether  it  is  a  joint  or  several  demurrer,  whether  it  is  to  the 
whole  or  part  of  the  bill,  and  if  to  a  part,  whether  it  is  accom- 
panied D"  a  plea,  or  answer,  or  both.   Then  comes  the  protestetion 
of  the  defendant  as  to  the  truth  of  the  matters  contained  in  the 
bill.   The  object  of  this  protestation  Is  to  avoid  a  tacit  admis- 
sion, wither  in  this  or  tjome  other  suit  of  the  truth  of  the  aver- 
ments :.n  the  bill.   This  clause  may  be  omitted  in  Michigan. 

Story  Eq.  PI.   Sees.  452,  457. 

Iv'ich.  Ch.  R.  9  a. 
The  demurrer  then  proceeds,  if  it  is  to  a  part  and  not  to 
the  whole  bill,  to  point  out  distinctly  those  parts  of  the  bill 
to  v/hich  it  applies.   The  rule  given  by  Lord  Kedesdale,  is:  "That 
where  a  defendant  demurs  to  part,  and  answers  to  part  of  a  bill, 
the  court  is  not  to  be  put  to  the  trouble  of   looking  into  the  bill 
or  answer  to  see  what  is  covered  by  the  demurrer;  but  it  ought  to 
be  expressed  in  clear  and  precise  terras  what  it  is  that  the^'party 
refuses  to  answer,  and  I  cannot  agree  that  it  is  the  ijroper  way 
of  demurring  to  say  that  the  defendant  answers  to  such  a  particular 
fact  and  demurs  to  all  the  rest  of  the  bill;  the  defendant  ought 
to  demur  to  a  particular  part  of  the  bill, specifying  it  precisely." 

Doemsher  v,  Hev/enham,  2  Sch.  i":  Lef.  199,  205; 

Atwell  V.  Fer-ett,  2  '^'latch  C.  C,  39; 

Ftory  Eq.  PI.   Bees.  457,  458. 
?ince  a  demurrer  cannot  be  good  in  part  and  bad  in  part,  the 
pleader  should  put  in  separate  demurrers  to  separate  parts  of  the 
bill,  when  he  is  in  doubt  whether  a  given  ground  of  demurrer  covers 
more  than  one  part  of  the  bill,   "^vit  where  ^there  are  t  o  or  more 
separate  demurrers  to  different  parts  of  the  bill,   each  must  point 
out  distinctly  what  part  of  the  bill  each  is  intended  to  cover. 

I'Z'nd   V.  Francis,  1  '*nst.,  5; 

Burch  V.  Coney,  14  Jur . ,  1009. 

GENE? A L  AND  SPFCI.al  DFTUHPEF-.  . 

The  pleader  must  always  assign  one  or  more  causes  of  demurrer, 
that  is,  point  out  the  defects  in  the  bill  or  that  part  of  it  to 
which  he  has  demurred.   If  he  points  out  the  specific  defects  he 
is  said  to  demur  specially;  if  he  merely  points  out  that  "the 
ccnplainant  has  not  made  or  stated  such  a  case  as  entitles  him  to 
the  relief  prayed,  or,  to  any  relief"  he  is  said  to  have  demurred 


XII.  EQUITY  PLEADirrCr  AMD  PRACTICE.  67. 

generally'.   a  general  demurrer  is  usually  sufficient  when  the  de- 
fect is  a  matter  of  su.bstr'nce. 

Wilson  V.  Hill,  46  F.  J.  Eq.,  367; 

Stewart  v.  Flint,  57  Ver . ,  216; 

V/ard  V.  Clay,  62  Cal.,  502; 

Bidder  v.  J,icLean,  L.  R.  20  Ch.  D.,  512; 

Essex  Paper  Co.,  v.  "rep.cen,  45  N .  J.  Eq.,  504. 
.A  defendant  may  demur  generally  to  the  v/hole  bill,  and  assign 
as  cause  want  of  equity,  without  being  more  specific: 

1.  YTnen  the  facts  stated  are  insufficient  to  entitle  the 
plaintiff  to  relief. 

2.  Tnen   he  has  omitted  to  verify  the  bill,  when  that  is 
necessary. 

3.  ''.Tien  he  has  ner^lected  to  offer  to  do  equity  in  cases 
where  such  an  offer  ought  to  be  made. 

4.  7/hcn  the  allegations  of  fact  within  the  personal  knov/l- 
edge  of  the  complainant  are  not  made  with  sufficient  positiveness. 

The  reason  for  the  rule  in  all  these  cases  is  that  the  plain- 
tiff, by  his  bill,  does  not  bring  his  case  within  the  description 
of  cases  over  which  the  court  exercises  jurisdiction. 

Car  en  v,  Johnson,  2  Sch.  ..":  Lef.,  280; 


2  Danl.  Ch.  Pr . ,  1  Ed.  7 


o 


Some  cau.se  for  demurrer  must  be  assigned.   If  no  cause  is 
assigned  th.e  demurrer  is  bad. 

Duf field  V.  Graves,  Carey  87; 
Fash  V.  Smith,  6  Com.,  421; 
Howland  v.  Kenosha,  19  '"is.,  264. 
If  the  demurrer  is  general  and  the  complainant  is  entitled 
to  any  relief  under  his  bill,  the  demurrer  will  be  overruled. 

Shaw  v.  Chase,  77  }.:ich.,  43G; 
•  Darrah  v.  T^oyce,  52  !'ich.,  480; 

Northern  P.  P.  E.  v.  Roberts,  42  Fed.  Rep.,  734. 
The  pleader  may  always  point  out  specific  objections,  and  in 
some  cases,  he  is  required  to  do  so.   '"hen  there  is  a  want  of 
parties,  he  mvist  point  out  who  the  proper  parties  are,  and  also 
multifariousness. 

Royner  v.  Julien,  2  Dick.,  677. 
Objections  for  want  of  jurisdiction  and  want  of  equity  should 
be  taken  by  separate  demurrers. 

Barver  v.  Barber,  5  Jur .  N.  S.,  Part  I.,  1197. 
Several  causes  for  demurrer  ma^"-  be  assigned  in  support  of  a 
demvirrer  and  if  either  one  of  them  is  good  the  demurrer  will  be 
sustained,  although  the  other  causes  assigned  are  bad. 

Canton  '.Varehouse  Co.  v.  Potts,  66  Miss.,  637. 
Since  a  general  demurrer  is  good,  whether  it  does  or  does 
not  point  out  specifically  all  the  defects  of  substance  appearing 
on  the  face  of  the  bill  with  the  same  particularity  as  must  be 
dene  in  a  special  dera\"irrer,  there  is  nothing  gained  by  not  point- 
ing them  out,  except  you  maj'  possibly  in  that  way  keep  the  com- 
plainant ignorant  of  your  real  objection. 


XII.  "     EQUITY   PLEADING   AND  PRACTICE.  68. 

SPEAKING  DE?.r.JRRER. 

In  assigning  cause  for  demurrer,  the  cause  assigned  must 
appear  on  the  face  of  the  bill;  no  new  fact  niay  be  imported  into 
the  bill.   A  demurrer  which  alleges  a  fact  not  contained  in  the 
bill  is  termed  a  speaking  demurrer  and  for  thp.t  reason  will  be 
overruled. 

Edsall  V.  Buchanan,  4  Ero .   C.  C,  254; 

b:.  C  .,  2  Ves .  Jr.  85; 

Brooks  V.  Gibbons,  4  Paige,  375. 
Should  the  fact  imported  be  immaterial  and  not  relied  upon 
to  support  the  demurrer,  it  will  be  treated  as  surplusage, 

Jones  V.  Charlemont,  12  Jur . ,  532; 

Kuypus  V.    Reformed  Dutch  Church,  6  Paige,  570; 

Davis  V.  17illiams,  1  Sim.,  5,  8. 
One  or  more  causes  for  demurrer  may  be  assigned  in  its  sup- 
port, and  the  pleader  may  at  the  hearing  of  a  demurrer,  also 
assign  one  or  more  causes  of  demurrer  in  addition  to  those  alread:' 
assigned.   This  is  called  demurring  ore  tenus .   Causes  of  demurrer 
assigned  £re  tenus  must,  however,  be  co-extensive  with  the  demurrer 
filed.  A    cause  of  demurrer  which  goes  to  a  part  of  the  bill  can- 
not be  assigned  ore  tenus  upon  the  argument  of  a  demurrer  to  the 
whole  bill. 

Robinson  v.  Smith,  3  Paige  222; 

"     "     "    Cas.  Eq.  PI.  ?-.   Pr .  163; 

Crouch  v.  Hickin,  1  Keen,  385; 

Pitts  V.  Short,  17  Ves.,  213,  216; 

Rujnp  V.  Greenhill,  20  Beav.,  512; 

Thompson  v.  University  of  London,  10  Jur.  N.  S., 
669,  671. 
By  the  former  rules  of  the  court,  the  demurrer  would  be  over- 
ruled by  a  plea  or  answer  to  the  v/hole  or  any  part  of  the  bill 
covered  by  the  demurrer,  for  the  reason  that  the  question  submitted 
to  the  court  by  the  demurrer  was  v;hether  or  not  the  defendant 
should  be  compelled  to  plead  or  answer,  and  if  in  the  meantime 
the  defendant  had  plead  or  answered  the  decisiin  of  the  court  was 
unnecessary  and  the  demurrer  was  overruled. 

Tidd  V.  Clare,  2  Dick.,  712; 

Clark  V.  Phelps,  6  Johns.  Ch.,  214. 
This  former  rule  has  been  materially  modified  by  recent 
Michigan  and  U.  S.  rules. 

Mich.  Rule  8  g.  h;   U.  S.  Rules  36,  37; 

Hayes  v.  Dayton,  IS  Blatch.,  420,  426. 
The  demurrer  must  be  signed  by  counsel,  tut  since  it  relies 
upon  matters  appearing  upon  the  face  of  the  b ' 11  it  need  not  be 
signed  by  defendant  or  sworn  to.   It  must  be  filed  and  a  copy 
served  upon  the  solicitor  for  the  complainant  within  the  time  pre- 
scribed bv  the  ri'les. 

I'ich.  Rule  5  d;   U.  S.   Rule  18. 
Under  the  United  States  and  !!ichigan  practice  a  demurrer  c?n- 
not  be  filed  unless  it  is  accompanied  by  a  certificate  of  counsel. 


XII.  EQUITY  PT,E.ADI!TO    f-TD  J>rtr^icr  .  69. 

that  in  his  opinion  it  is  well  founded  in  lav;,  and  that  it  is  not 
interposed  for  delav  merel-'. 

U.  S.  ?,.    31,  Ghy.  P.  9  c. 

AKGUITEMT   OT  DEI'^IRHER . 

Either  party  nay  sot  the  demurrer  down  for  argument.   In  the 
United  States  courts  complainant  must  set  down  the  demurrer  for 
argument,  and  if  he  neglects  to  do  so,  he  will  be  presumed  to 
admit  its  sufficiency,  and  the  bill  of  com.rlainant  will  be  dis- 
missed 0 

I'.  S.  Rules  33,  33;    rich.  ^.  9  d. 
Upon  the  argument  of  the  demurrer  the  facts  stated  in  the 
bill,  or  in  that  part  of  it  covered  by  the  demurrer,  which  are 
well  pleaded  and  are  relevant,  as  we  have  said,  are  admitted  to 
be  true.   If  the  demurrer  is  sustained  the  court  in  effect  s-ys 
that  the  bill  is  insufficient  in  v;hole  or  in  part,  and  the  plain- 
tiff's cause  would,  to  that  extent  be  finally  disposed  of,  if  he 
was  not  permitted  to  amend  his  bill.   This  permission  is  always 
granted  upon  request  if  the  defect  upon  which  the  demurrer  was 
grounded  is  one  that  the  plaintiff  can  cure  by  an  am.endment . 

Lord  Comin^sby  v.  JeV.yll,  2  P.  Wms . ,  300; 

Bank  of  ?.;ichi{?;an  v.  Niles,  7/alk.  C}; . ,  3C-8; 

rich.  R.  9  e.  ' 
The  effect  of  overruling  a  demurrer  is  to  reiCLUire  the  defend- 
ant to  answer.   The  admission  of  the  truth  of  the  allegations  of 
the  bill  made  by  the  dem.urrer  are  admissions  for  the  purpose  of 
the  argum.ent  solely,  and  consequently  such  admission  does  not 
entitle  the  complainant  to  a  decree.  r.e   is  no  nearer  a  decree 
than  he  was  before,  except  he  has  obtained  the  jud^^ement  of  the 
court  that  his  bill  in  form  and  substance  is  .^iood  and  sufficient. 
The  defendant  is  not  required  to  ask  the  leave  of  the  court  to 
answer.   Ple  is  required  to  answer.   He  by  his  demurrer  asked  the 
judgement  of  the  court  if  he  should  be  required  to  answer,  and  he 
has  obtained  that  judgement,  and  must  answer. 

Sometimes  when  the  court  is  in  doubt  it  will  overrule  the 
demurrer  and  reserve  the  question  of  the  suff icionc:-'  of  the  bill 
to  the  hearing. 

Rro'.vnsword  v.  Fdwards ,  2  "es  .  Sr . ,  245,  247; 

Thomas  v.  Tyler,  3  Y.  f:  Coll,,  255; 

1  Danl.  Gh.  ?r .  (  jth  Ed.)  2o7,  208,  465,  465; 

T-afford  V.  '.Yilkinson,  3  ?enn.  Oh.,  449; 

Eorbes  v.  Turkom.an,  113  Kass.,  115. 
It  is  discretionary-  v.-ith  the  court  where  a  demurrer  is  merit- 
o-'-icus,  nut  it  is  ovevruled  on  account  of  some  technical  defect, 
to  -ermit  the  defend.ant  to  demur  a  second  time. 

Devonsher  v.  ""ewenham,  2  Sch.  f^r  Lef.  199; 

aie::g  v.  Legh,  4  Yad.,  207; 

Thorpe  v.  Macauley,  5  T!ad.,  215; 

^aker  v.  Tellich,  11  Ves . ,  06. 


>:il.  EQUITY"   PLE''".'!"'"   A"'D  FF'-Ci'ICr.  70. 

.^nd  some  times  ''■r''-en   the  "hill  has  1)6611  so  artfu.lly  clra'vn  that, 
adxQittin.-j;  its  several  allef^ptions,  the  demurrer  must  be  overruled, 
the  court  -.vill  permit  the  defendant  to  make  the  defence  he  sou.r;;ht 
to  m?,ke  hy  demvrrer,  b:  i  lea,  pi'.ttinf^  in  issie  some  f  ct  fr  tal  to 
tlie  ilBintiff's  cause.   But  since  but  ont-  dilator:'  defense  is  per- 
mitted withou.t,  leave  of  the  court,  if  tj-it  defendant  desires  to 
plead  to  the  sp:me  part  of  the  bill  to  v.-hich  ^-e  has  demurred,  he 
must  before  fill  ;,^  his  plea,  obtain  the  leave  of  the  court. 

^ov-lep  V.  Pedes.,  1  *^.  ^t  =^ . ,  ol2; 

T-udson  V.  "udson,  1  =; .  -  ^.,  512,  note. 

:'itford's   Fl..    Copier   Fd.)    510. 
'"hile   a    demrr'rer   in   le/^al   effect    is   a   bar   to    the   svit,    if 
sustained,    it    is   not    a  ba:-    to    a    subservient    suit    for    the   sar.e   cruse 
of   action,      '^nere   a   c-use    is  heard  i.pon   the  r-e'-^its,    and   the  bill 
is    dism.issed  a'-^solutel;  ,    p^nd  net   v/ithout   prejudice,    such  dismissal 
is   a   bar   to   a   subseip/ent    suit. 

''olmes   V.    Fei.:sen,    "    'ohns .    ."^h.,    23^-; 

?tcrp   F.i.    PI.      ~ec.    456. 
I'nder    'he  modern  practice   a   dtimu'rre--   does   not    lie   to   a  plea 
or   an    anSu^er . 

rd'vards   v.    Drake,    15   :^la . ,    C/i^-C ; 

Crouch  ^'.   Kerr,    j&  Fed.    Pep.,    349. 

^/inters    v.    Cl^itor,    54   Tiss . ,    341; 

Banks    v.    T'anchester ,    12c   U.    P..,    244; 

'^ravus   v.    Poss,    14    ■" .    J.    Fci.,    254. 


■oOo- 


XIII.  EQUITY     PL:^ADL:TG     KJD     PR.\CTICZ.  71. 

CHAPTER  XIII. 


PLEA 


S.. 


There  may  oe   some  single  fact  which  is  aecisive  of  the  ri.-^thts 
of  tr.e  parties  to  the  cause.   As  v/e  have  seen,  if  this  appears^ 
upon  the  face  of  the  bill  tlie  defendant  can  take  advantai^e  of  it 
'tiy   demurrer.   If  it  does  not  appear  upon  the  face  of  the"  oill  it 
may  be  talcen  advanta.ge  of  oy  plea. 

Pleas  are  divided  into  three  classes: 

1,  Pure  or  affirmative. 

2,  :<egative. 

3,  An'jmalouSo 

This  division  is  due  primarily  to  the  allegations  contained 
in  the  bill  with  reference  to  the  fact  pleaded. 

The  complainant  may,  in  his  oill,  make  no  reference  whatever 
to  the  fact  which  is  a  com.plete  bar  to  his  action.   In  that  case 
all  that  is  necessary  for  the  defendant  is  to  plead  such  fact 
affirmatively,  i,  e. ,  to  aver  by  plea  the  existence  of  such  fact. 
Such  a  plea  is  a.n  aff irr.iative  plea.   Again,  trie  oill  may  state 
affirmatively  the  existence  of  so.ne  particular  fact  upon  which  his 
whole  rir^ht  of  action  depends  ,  an.d  that  particular  allegation  may 
be  f8,lse.   It  is  necessar;,''  for  tl:e  defendant  in  such  a  case  to 
plead  the  non-existence  of  that  particular  fact  alleged,  to  nega- 
tive that  much  of  the  bill.   Such  a  plea  is  a  negative  plea.   Or 
again,  the  compls.inant  may  set  forth  in  his  bill  the  apparent  ex- 
istence of  a  fact  which  is  a  complete  bar  to  his  action,  and  then 
allege  certain  other  facts  aiid  circumstances  whic"!  shov/  th£;,t  in 
tn-ith,  it  is  no  bar.   In  such  a  case  the  plea  must  affirm  the  ex- 
istence of  the  fact  admitted  by  the  bill,  and  then  ne^jative  all 
those  facts  and  circumstances  alle'-ed  in  the  bill  tending  to  destroy 
its  effect  as  a  oar.   Such  a  plea  is  an  anomalous  plea. 

It  will  be  noticed  at  the  outset  tl^at  picas  differ  m^aterially 
from,  demurrers.   A  demurrer  takes  t;:e  bill  as  dravrn  aiid  assui'-in^^ 
tZ-iat  all  its  aller^ations  are  true,  points  out  some  defect  appear- 
ing upon  its  face.   Such  defect  very  seldom  20^3  to  the  very  heart 
of  the  plaintiff's  cause  of  action.   It  is  usually  some  fact  show- 
ing a  disability  in  the  parties,  want  of  .jurisdiction  in  the  court, 
or  some  inl.erent  defect  in  the  case  as  stated.   Pleas  not  only 
include  all  these  special  objections  when  they  do  riot  appear  on 
the  face  of  the  bill,  but  they  sl.^o  include  a  large  num.ber  of 
defences  which  go  xc  the  merits  of  the  cause  in  some  one  particular, 
which  are  decisive  of  the   suit  upon  the  merits.   The  plea  is 
therefore  frequently  in  its  nature  a  special  ansv/er  to  the  case 
made  by  the  complainant,  and  it  is  in  its  particular  character  as 
an  answer  which  a  plea  possesses  that  we  find  the  reason  for  cer- 
tain rules  that  have  been  adopted  with  reference  to  them.   As  we 


XIII.  EQUITY     PLP]ADING      Aim     PRACTICE.  72. 

shall    see  hereafter,    a  plea   is   frequently  ordered  ^oy  the   court   to 
stand  as  an  answer. 

Farley  v.    Kittson,    120  U.    S.,    303. 

"  "  Gas.        3q.    PI.    5:  Pr.  ,    183. 

■Heartt  v.    Corning,    3  Paige,    566. 


I*  It 


Cas.   Eq.  PI.    &  Pr.  ,    17  7. 


The  plea  must  be  single.   It  must  preseiit  a  single  .-jround  of 
defense  wliich  vv'ill  be  decisive  of  tlie   controversy,  or  of  so  much 
of  tlie  plaintiff's  claim  for  relief  or  discovery  as  is  covered 
by  the  plea,  and  a  plea  presenting  two  or  more  grounds  of  defense 
is  cad,        Nobkissen  v.  Hastin/:;s,  2  Ves.,  83; 

'JVliittred  v.  Brockhurst,  1  Bro .  C.  C.  ,  404; 

Coath  V.  Jackson,  5  Ves.,  11; 

Albany  City  Bank  v.  Dorr.  V/alk.  Ch.  317,  322; 

Nobkissen  v.  Hastings,  4  Bro.  C.  C,  253, 
This  rule  does  not  preclude  the  pleader  from  setting  forth 
in  the  plea  all  the  facts  tending  to  establish  his  siuj^le  defence. 
Multifariousness  in  a  plea  is  not  produced  by  the  averment  of 
several  separate  and  distinct  facts,  all  of  whicli  tend  to  estab- 
lish a  single  proposition,  but  oy   the  a.ver:::ent  of  several  proposi- 
tions, either  of  v/hich  is  a  sepa.rate  defence. 

Pox  V.  Yates,  24  Beav. ,  271; 

Harrison  v,  Southcote,  1  Atk, ,  523; 

Hazard  v.  Durant ,  25  Fed.  Rep.,  26; 

Harrison  v.  Earrin.-^ton,  38  i^.  J,  Eq.,  358. 
The  pleader  may,  however,  someti;nes  obtain  leave  of  the  court 
to  file  a  double  plea.   This  is  sor.etimes  necessary,  especially 
when  the  bill  has  been   dravm  with  a  double  aspect.   Th^us,  where  a 
bill  was  drawn  seeking  to  charge  real  estate  v/ith  certain  deots 
of  the  ancestor,  and  alleging  that  they  were:   1.  Made  a  charge 
by  the  will;  and,  2,  if  not  made  a  claarge  by  the  will,  they 
were  a  charge  from  the  fact  that  the  ancestor  was  a  trader.   The 
court  permitted  a  plea  to  be  filed  denj^ing  the  allegation  that  the 

will  made  the  debts  a  charge  upon  the  real  estate,  and  also  that 
the  ancestor  was  a  trader,  which  would  malce  t:;eai  a  charge  xiiider 
the  statute.    Gibson  v.  Whitehead,  4  Mad. ,  129,  241; 

Hard-man  v.  EllaiTies,  5  Sim.,  640; 

Kay  V.  Marshall,  1  Keen,  190,  192. 
When  great  inconvenience  might  otherwise  oe  sustained  by  the 
defendant  he  is  soineti.nies  permitted  to  file  a  double  plea. 

Kay  V.  Marshall,  1  ileen,  1^0,  162; 

McClosky  V.  Barr,   38  Fed.  Bep.,  160; 

U.  S.  V.  American  Bell  Tel.  Co.,  30  Fed.  Rep.,  1^23; 

Bompton  V.  Binhall,  4  Beav. ,  558. 
The  reason  for  the  rule  that  a  plea  must  be  single  is  that 
the  advantat'e  which  a  plea  has  ever  t.n   answer  in  shortening  the 
proceediners,  would  oe  destroyed  if  the  pleader  were  permitted  to 
introduce "into  his  plea  more  than  one  defense.  Wnen   he  is  per- 
mitted, by  leave  of  the  court,  to  plead  more  than  one  defence  to 
the  same  bill,  or  the  same  plea,  but  file  separate  pleas. 

Gibson  v.  Vvh.itehead,  4  Mad.,  129,  241; 

Benson  v.  Jones,  1  Tenn.  Ch. ,  498; 

Brinkerhoff  v.  Brown,  7  Johns.  Ch. ,  216; 

Saltiers  v.  Tobias,  7  Johns  Ch.,  214. 


XIII.  EQUITY     PI^ADItlG      MD     PRACTICE.  73. 

A  plea  cannot   oe  n.ade   to   perforr.   f-'e  office  of   a  denrurrer. 
If  it   sets  forth  no  new  jnatter,    but    relies  upon  tlie   allegations 
contained   in  the  bill,    it  will    be  overruled. 
Black  Y.   Black,    15   Ga. ,    445; 
Andrews  v.   Lockwood,    11  Jur.,    956. 
The  plea  must   clearly  axid   distinctly  aver  all  the  facts  neces- 
sary to   render   it   a  contplete  defence   to   the   case  made    by  the   bill 
so   far   as   the  plea  extends.      V/lien  such  facts   are  within  the  knowl- 
edge of   the  defendant,    tliey  must    be   averrei  positively,    but  when 
they  are  noL  v/ithin  his  per'sonal  knowledrje,    tliey  niay  be   averred 
upon   inforrnation  and  belief.      All   intendments   against   the  pleader 
niust  be   excluded  by  proper   averments   of   facts,    not   conclusions  of 
law.  Harrison   v«    i'arrlngton,    38  N.    J,  Eq.  ,    358. 

"  "  Cas.   ii-q.   PI.    &  Pr.  ,    173. 

Parker  v«   Parker,   Walk^    Gh. ,    457,    458; 
Madison  v,   V.'alt:jrtown,    5  Wis.,    173. 
Wlien   the   facts   are   not   char;£;ed  in  the  bill    to  be  within  the 
Icnowledge  of   the   defendant,    the   defendant  nay  in  his  plea  negative 
the  averment   "to   the  best   of  his   knov/ledge  and  belief." 
Bolton  V.    Gardner,    3  Paige,    273; 
Ileartt   v.    Coming,    3  Paige,    536. 
T^ie  plea  mvst   not   aver  conclusions  of  law,   but    the  facts 
from  which   such  conclusions   may  oe  dravm. 

Farley  v.    Kitson,    120  U.    Sc,    303; 
Larimore  v.   Wells,    2-J   Ohio   St.,    13. 
When    the   defendant  pleads  want   of  proper  parties,    that  fact 
not  appearing  on  the   face  of   the  bill,    tlie   objection  must  be  made 
in  gL  clear  and  explicit  maruier,    and  the  plea,    like   the  demurrer, 
m.ust   show  who   the  proper  ps,rties  are. 

Robinson  v.    Smith,    3  Paige,    222; 
Mitchell  V.   Lenox,    2  Paige,    280. 
The  plea  of   atiother   suit  pending  for   the   same   cause,   and  for 
like   relief,    is    euffioient.      The  plea  should   set   forth  the  general 
character   and  objects   of   such  other   suit,    and  the   relief  prayed. 
Bank  of  Michi-^:an  v.   vailiar..3,    Ho.r.    Ch.  ,    219; 
Radford  v.   Folsom,    14  Fed.   Hep.,    97; 

"  "  Cas.    Eq.      ?1   6c  Pr.,    191. 

A  plea  of  a  stated  accovmt  must   aver   that    such  account  was 

just   arid  fair, 

Schwartz  v.    'Wendell,   Har.    Ch„ ,    335. 
When   the  defence    is   based  upon   soine  fact  which  has   arisen 
after   filing  of   the  bill,    and  before  other   defence   is  put   in, 
it   can  be   taken  advantage  of  by  plea,   but   if   the   defence  has  bean 
made,    it  must  be   taken  advantage  of  by   supplemental  or  cross  bill. 

Payne  v.  Beach,,  2  Term.  Ch.  708; 

Miller  v,  Fentcn,  li  P?age,  18; 

Lane  v,  Sm.ith,  14  Beav.  ,  49; 

Wallace  Vo  Dunning,  Walk.  Ch. ,  416. 
It  is  within  the  discretion  of  the  court  to  perrait  a  plea  to 
be  amended  when  the  application  for  the  purpose  shows  mistake, 

inadvertence,  etc. 

Freeman  v.  Michigan  Banlc,  Kar.  Ch.  ,  311; 
Greene  v.  Harris,  11  R.  I.,  5. 


XIII.  }?1Q.U.TTY     PL:E/J3IJa     A;TD     PRACTICE.  74. 

.Ve  hare   seen  t'lat   a  .le;..urrei-  ad/nits,   for    rarposes   of    the 
ar  .xi:nent,    t]:at   all    the  facts   v/ell  plea.le-l   in   the   oill  rj-f    true, 
but   introlvces   no  new  fact,      i':  j  pi;.rpor-;e   of    tie  plea  on  t>ie  other 
.'and,    is   to   call  .the   attention  cf   t-.e   court    to   a  fact   not   appear- 
inr:  on  the  face  of   tlie  bill,    wiliich  is   a   bar   to   the  plaintiff ''s 
action;    but   while  the  pleader  r.iay  deny  any  alle'-ation     of  fact  .rade 
in  the   oill,    .yet   the  plea  aclTiits  all  the   alle-'iations   of   the   oill, 
which   it    ioes  not   'oy  averirent   deny.      It  follo'-vs,    therefore,    that 
when   t}.ere  are  any  alle/jations   of  f-.ct   in   the   Dill   inconsistent 
vdth  tr.e  pJea,    such   alle-'-ations  j:iList    oe  ne.jatived  by  spec- 

ific  averments   in  the  plea,    otherwise   tlie  plealer  vrould  'o~y  his  plea 
aver   a  fact   and   oy  the   sarr.e  plea  constructively,    but   none   the  less 
positively,    adrdt   the   truth   of   an   allegation   in  the   oill   wholly 
at  variance  wit;i  his   averrr.ent.      It   is    therefore  necessary  for   the 
pleader   in  dravanv;  his  plea,    to   e::ai-iine   the   bill   and   to  negative, 
by  positive   averr.ent,    every   allegation  contained  therein  w  dch 
is    inconsistent   with   trie   trv.tl:   of   the  plea. 

Por:::erly,    o.:e  cf   the  principal   objects   gained   oy   a  plea,   was 
to  prevent    a   discovery  on   t";e  part   of   the    defendant.      It    is    evi- 
dent  that   if   t":e   defence  made   by  f.e  plea  goes   to    fie   whole   Dili, 
f'at    t'-'e   co::plainant  has  no    ri ;iht    to   discovery,    since  he   r:as   no 
rig]:t   of    action.      T-;ereiore ,    if    there   i.re  no   allegations   in   the 
oill  wjici;    tend   to   negative   t".e   ..■lea,    or   in   other  words,    to   dis- 
.^rove    the   existence   of   the  ps,rtic-.;lar  fact  \v\:.ich   trxS  plea  avers 
'■.:;d   sets  up   a:;   a,   special  defence,    the  pleader   is  not   rcc^i:ired   to 
r:a:.:e  any  aiiswer   to    the   oill  Yz-iatever. 

If,    hov/ever,    t-  ere  are   8-lleg-.tions   of  fact   in  the    bill  ne  :a- 
tiving  tie    trut'.  of   the  plea,    the  plaintiff   is    entitled   to   discov- 
ery,   as   to    those  particular  fa.:ts.      They  are  pv:t   in  issue   oy   the 
averiv.ents   of   the  plea,    and   the  plaintiff  is    entitled,    as    to    theni, 
to  have   ti'-ie   defendejit's   testimony.      Consequently,    the  pleader  ir.ust 
not   only   in  his  plea  negative,    oy  proper  averr.:ents ,    all   the  a]-le- 
gations   in   t!:e   bill   inconsistent  with  the  truth  of   the  plea,    but 
he  -Tust   also   answer   fully  and   explicitly,    .;.s   to    those  allegations. 
Such   an  aiTswer   is   sai:^.   to    be  an  answer   in   support    of    the   plea. 

il'.ese   rules   are  applicable   to   all  pleas  v/:et"-:er  pare,   ne^-a- 
tive   or  anoinalous. 

V/ilson  V.   Harrniondr ,   L.    h.    3  Eq.      Cas.,    323; 
Tiijsit  V.   Penrice,    17  Bea^v.  ,    o?,*:; 
Young  V.     .j-.ite,    17  geav.,    532. 

He  need  not,    of   course,    answer   irrelev&jit   questions   or   any 
interrogations    in   fact   that  >,e  would   oe   excused  fror.  answering  if 
lie  v/as   on   the   v/itness   stand. 

f 0  u-ng  V .    wlii  t  e ,    17  B  e  av .  ,    532; 
Lyell  V.   Kennedy  J    6  App.    Cas.,    217. 


XIV.  EQUITY     PLl.ADrJG     /JID     PR^.CTICE.  7u, 

L  E   C    T  U  il  li     XIV. 


PUBE        ?I^\S . 


A 'Pure  plea   is   one  wMch  avers   sojne  face   i\oz   £..ppearin;_;  upon 
tV;e  face   of   the  oill,    as   8.  oar    to    the  plaintiff's   clr.im. 
2  Daniels  Ch.   Pr.    (1  ;L=d.)    97. 

The    theory  upon  which  the  pleader  proceeds  with  the   affirnia- 
tive  plea  is,    that,    assimin,^  the   allegations   of   the    oill   to    oe 
true,    there   is    a  fact,    or   circuii.stance,    not  mentionel   in  the    cill, 
which   is   a   -rood  and  sufficient    reason   why   tlTS   oornplainsjiit   s;iould 
not    oe  perirltted   to  proceed  'A'ith  his   suit.      The  court   in  order   to 
s^'.ve   expense   to    the  pj-.rties   decides  upon  tl^e  validit:.^  of   the   objec- 
tion,   tahlnr  tVe   oill,    so  far  as   it   is  not   coniradicted  iDy  the 
plea,    as   true. 

iffiaATIV:r  PLEAS. 

But    there   are   cases   in  v/:-,iG?:.  soiiie    alle?;ation  }vxi.le   in   the    bill 
and  wh_ich   is   absolutely   essential    to    the   complainant's   ri-:3ht   to 
be  heard,    is   denied   bj  t".:e   ief  endaiit .      For   instances  A  may  file   a 
bill   against  B,    claiiTiin:j;   to   do    so   as   the  ::eir   of  G,    and  3  Tnaj-   deny 
that  A.    is   in  fact   the  heir  of  C.      ihis   is   called  a  ne,i,-ative  plea, 
and  always    oy   its   averriients   denies   the  truth  of   so:ne  alle-^ation 
in   the  bill  w}-.ich  is  vital    to    tl:e   coivplaina^t  •  s   case.      It    wris   at 
first  held   that   such  a  plea  could  not.    oe   filei.     Lord   Ihurlow  so 
decided   in  1787    in  a  cc.use  wl^ere   the   cori.plainant   clairned    to    oe   the 
heir  of  a  certain  person  a..i   the  aefendant    sougjit   oy  plea   to  deny 
that   allej;ation  in   the  bill. 

BeYman  v.    Wallace,    2  3ro.    C.    C.    143,    146; 

Gunn  V,    x^rior,    2  Dick.,    o57. 
T'  e  Chancellor  hi:;i^elf ,    however,    afterv/arls   admitted  that   he 
had  arrived   at   a  wron;;  conclusion,    BU'rl   since   then  ne-;'U,i;ive  pleas 
have   been   ad  lowed. 

^Tall  V.   iToyes,    3  3ro.    C.    C.    'h:.?,    48v^; 

Jones  V.    Davis,    15     Ves.,    2h-;. 

Spangler  v.    Sparir^ler,    19    111.   App.,    28; 

"  "  Ccs.   Lq.   PI.    h  Pr.  ,    T:i9 . 

AUOL'IALOUS  P~:ZAS . 

An  anornalous  plea  is   reso.rtei  to   in   those   cases  where   the   oill 
admits   the   existence   of   a  certain  fact,    and   then   oy   distinct   alle- 
gations    seeks    to   avoid  the   legal  effect   of  sue};  fact,    oy   setting 
up   fraud  or  mistake.      The  a..onialous  plea  avers   th.e   existence   of 


XIV.  EqjJT±Y     PLEAD  Eia      /-iID     PPu\CTICS.  7Z. 

the  fact   admitted   -Dy   t}ie  bill  r-id   t:\er.   tr?,verse3   the   allegations 
of  mistake  or  fraud   coiitainei   in   the  bill   through   whiCii  t'iie  plain- 
tiff  seeks   to   avoid   the  le.^al    effect   of   such  fact.      I'or  exajr.ple, 
suppose  A  and  3  had   oeen   co-partners   and  upon   the   dissolution  of 
t>,e  co-partnership  had  subji.itted   the  differences  between  them, 
growing  out   of   the  partnership  business,   to   aroitrators  v/ho  had 
duly  made   en    award'.      A  afterwo,rds   files   a  oill   a^-aiust  B   -raying 
for   an   account   of   t  . e  partnership   business.      Jew,    if  he   said 
nothing  aoout   t?ie   arbitration  and     award  in  his    oill,   B   could  by 
an   affinriative  plea   set   tliat  up,      Br.t   in   such   a  case   if   Zne   bill 
alleged  that   t   ere  ':ad  been   on   aroitration  and   a  pretended  .av/ard, 
but   thi.t   such  award  was  null   and  void  because   f.ere  lias   oeen   col- 
lusion  oetvv'een   t}:e   arbitrators   and  B,    aiid   set   forth   sever:i.l   alleged 
facts   and  circujr.stances  wliich,    if  true,    would   tend   to   establish 
tlie  collusion  and  fraud,    in  such  a  case  B  must    resort   to  an  cjiom- 
alous  plea,    averring  the  arbitration   cuid  awcird,    aenyim;  collusion 
and  fraud   oy   specif ic a]. ly    ''enying   each  allegation  of  fact    in  the 
bill   tending  to   estaolish  such:   c-llusion   and  frauji.        And  this  plea 
must  be    supported   -oy  an   ansv/er  niakin-^  a  full  disclosure   in  re-^ard 
to   all   the   alle.^ations    in    the  bill   tending   to   show   collusion   and 
fraud.      Th^e  corqilainant   is   entitled   to  have   the   aJ-le^ations   of 
fraud  '..nswered,    oecause  his      Tight   of  action    ,    as   appears   fro.-,  his 
bill,    depends  upon  his   showin.^  collusion  axio.  fraud.      Otiierwise, 
when  he   filed  his    replication   to    the  plea,    he  would  put    in  issue, 
not    ti'e   existence   of   the   facts    showin^^  fra^ud,    upon  w^iich  he   depend- 
ed  solely  for   relief,    out  upon    the  fc.cts  appeo.ring   in  the  plea, 
that   is   the   existence  of   tiie   award,    aoout  wl'..ich  tliere  is   no   dis- 
pute.     JJiut    if   the  plea  traverses    the   allegations   of   fraud,    then   a 
replication   to   the  plea  puts   th.ose   8J.le.;jations    in   issue.      Ti;e   de- 
fendant must    traverse   all   the   allegations    tendin.3   to  negative   the 
plea,    in  the  plea   itself,    and,    as   we  h-„,ve    said,    the  plea  must  be 
accompanied  by   exi   answer   in   its    support   in  w'r.ich   such  allegations 
shall  be  fully   and  explicitly  ansv/ered.      T'.e  plea  traverses    the 
allegations    in  the  bill   tending   to    negative    the  plea,    in  order 
trat    the  truth  of   t^iose   allegations   may  oe  put   in  issue.      The  plea 
;riust    De   supported  by  an   answer   as    to    those    same  allegations  for 
a  very   different  but    eo.ually   satisfactory   reason.      The   complainant 
is    entitled   to    a  full   discovery   from  the  defeadcuit   of  all   t":  e   facts 
within  his  knowledge   or  belief  wh.ich  tend   to   estaolish  the   com- 
plainant's  right    to   relief  or   to   discovery  even.      Therefore,    v/hen 
relief   is   oased  upon   the  -;roujT:d   of  fraud  and    vh.e   defendant   is 
asked  to  discover   certain  f  :..cts  within  his   hn^-; ..ledge  tending   to 
estaolish    such  fraud,    he  must    a_n3v;er   and  meke    the   discovery   asked, 
to    the   end  that    the   complainant  may  have  the  advantage  of  t}ie  ans- 
wer as   evidence     upon   the  liearing  of   tie  plea  to   establish  his 
case  by  disproving  the   case  made   \:'y   t':e  plea. 

>7e  have   already  called  jc-j.r   attention   to    the    rule  that    if   an 
answer   covers   any  material   part   of   the   oill  demurrer   or  pleaded 
to,    the   damurrer   or  plea  will   oe  overruled.      In  the   case  we  have 
supposed  where   the  hill   is   filed   to    set  aside   an  award  w^-ich,    if 
'■;.>od,    would  be   a  complete    Oar   to   the   co.-:'plainant '  s   cause  of  action, 


XIV.  EQUITY     PLiSilDLTG     nTD     p-rxACTia^:.  77. 

and   tlie    defe/.dant  plea.ds   the  award,    it  v/ov.ld  seem  at   first    -rla.nce 
that   if   the  defendant   answered   the   avern:ents    in  the   Dill    showing 
that   such  award  v/as   void,    tl-at   tJie    ansv^er  covered   tl:e   same  part 
of  the  bill  as   the  plea.      This   is  not   the  case,   however.      The   bill 
in   such  a  case   is    filed  for   t:-.e   purpose  of   obtainin;;  discovery  and 
relief.      The  plea   Is  to    relief   and  not   to    discovery!      Tiie  defen^V" 
ant   relies  upon  the   av/ard  as   a  complete  b^r    to    a.ll   relief,      t:  at 
it   is   a  cor.plete   Oi^r   if  valid,    ti\e   loill   in  suostance   admits,    for 
the   complainant   asks   to    be   relieved  from  its   effects    by  liavini-  it 
set    aside.      The   defendant,    tV.ereiore,    by  pleadin,-   t:ie   award   and 
denying  the  allegations  of  fraud  puts   in  issue   the   validity  of 
the  award.      But    the   f.  ct    t;-at    there    is    a  valid  awarl   raid   that 
tiierefore   the   co^nplainc.nt   is   not    e.ititled   to    relief    is  not    a  denial 
that   thte   complainant   is   entitled  to   a  full   discovery  froin  the   de- 
fendant  of  all   the   facts   within  '^-.is   la'iowled'ie   of   belief,    tending 
to  disprove   the  plea.      The   ansv/er,    therefore,    is   not  an  answer   to 
the   bill,   hut   sirrply  an  an-^wer      in  support   of   the  plea,    since   it 
makes   discovery  touchin.^  those   averments   in   th^e   bill  tr:..versed 
and  denied   oy   V--e  plea  ?aid  thus  put   in  issue. 

Bolton  V.    Crardner,    3  ?ai'-:e.    273. 

"  "  Cas.  Sq.    PI.    Sc  Pr.    197. 

Sanders  v.    Kinj;,    6  had.,    61; 

Thrin-  v.   T:d-ar ,    2  S.    &  S.  ,    2741277; 
The   snswer   is   said   to    support    the  plea,    for   the   reason   t:xat 
ti.e   court  will   intend  all  ma-tters   alle.:;5ed   in  tlie   bill,    to   wliich 
the  oorqjlainsuit   is    entitled   to    require   an  ans\7er,    to    oe   a;a.inst 
t/'.e  pler.der,    unless   they  are   fully   and  clearly  denied,    and   there- 
fore,   if   in   the   c.se  we  supposed,    t'.e  defendant   should  plead   tlie 
av;ard   and  not   fully   and   clearly  an.^^wer   the   allegations   of   fraud, 
t'.e   court   vi/'ould  assiume   that   such   alle.rations  were   susceptible  of 
proof   and  on   that    .^jround  would   overrule   the  plea.      If   there   is   a 
proper   ansv/er   in   support   of    the   plea,    such   answer   is   no  part   of 
the  defense,    but   only  wh3,t    t?ie   complainant    is    entitled   xo  Lave   to 
enaole  him.   to    avoid  the  defence  made   by  tre  plea  and  establish 
the  case  m  de  by   the  bill.      T>e  con^Jlainant    is   entitled    t-o   read 
the   answer   on  the  he'.rin^  of  the   plea. 

Goodrich   v.    Pendleton,    3   -Jo'^ns. 

"  "  Cas.   Eq.   PI.   &  Pr.  ,    2C3. 

Hilyard  v.    Cres-3y,    ?  Ar^^.,    30'i; 

TTony  v.    Hony,    1   S.    S.  ,    568,    Cbu; 
Tnen   an   answer  under  oatr.   is  waived,    tha  plea  neei  not    be 
supported   by   an   aiiswer,    since    tTe   complainant    is  not   entitled   to 
discovery.  Cheatham  v.   Pearce,    89   ■..vrin.  ,    668,    678; 

Da.niels  Ch.   Pr^    (3  .Am.   hd.)    640   n.    2. 
\Vlienever   notice   of  freiud   X3   alleged   in   the    oill   the   plea  must 
by  positive   averments  negative    t'- e   notice   or  frauds  averred,    and 
such  notice   or  fra\:d  must   also   be  ne-^-atived   oy   the   rnswer  wiich 
supports   the  plea. 

lieadows  v.    TV.e  Dutchess   of  Kingston,   A;-.ib.    756; 

Devie  v.  Chester,  1  Cox,  224; 

rioare  v.    Parher,    1  Bro.    C.    C,    578; 

Biciuiell  V.    Gough,    3  Atk. ,    558. 


enti 

tied 

Chy . 

384. 

PI. 

&  Pr 

AlV.  iiQUITY     i-LaADLilG      A.ID     ic^KACTICE.  78. 

The   answer   in  support   of    t^-e  plea  T.ust   not    30   so  far  as   to 
be  an  answer   to   t":e  bill.      Tr.e   corqDlainant   is    entitled  to    aa  ans- 
wer to   all   interro-sUories   coverin'^   the   allegations   denied  by  the 
plea,    and   to  no  more.      If   other  interro  ::atories   are    answered   the 
answer  will  overrule   t"  e  plea. 

Sowzer  v.    DeMeyer,    2  ?ai;^e,    574. 

"  _        "  Cas.   la.   PI.    &  Pr.,    211. 

Grant   v.   Phoenix  L.    Ins.    Co.,    121     U.    S.,    105. 
And  when  no   answer   in   supporL    of    z-  e  plea  is   required   any 
answer  will  overrule   the  plea. 

DIFFEPJLi;'!   GRODivIDS   OF  PLSA. 

Pleas  of   relief   are: 

1.  To   the   .-jurisdiction. 

2.  To   t:  e  person  of    the   co.Tiplainant   or  defe.idant. 

3.  In   oe.r  of    the    suit. 

1. 
Pleas    to    the   jurisdiction,    lo   not    leny   t'r-e    ri.^ht   of   t]:e   com- 
plainant  in   the  subject   of   f.-e    suit   or   assert   that   there   is   any 
disaoility  on   the  part   of        either   the   coiiiplainant   or  defendant, 
but    assert   thr.t    a  court   of   chancery   is   not    the   oro^.'er   court    to 
ta.ie   cognizance  of   fne   cause. 

Story  iiq.   PI.    §    706. 

2. 
Pleas   to    trie  person,    do   not   dispute   f.  e   jurisdiction   of    fne 
court,    or  the   interest   of   t^.:e   complainant,   but   assert   that    the 
Goraplainant    is    incapacitated   to    sue,    or  t'  at    the  defendant   is   not 
the  person  w}:o   oujVit    to    oe   sued„ 

Story  hq.   PI.    §    706. 
A  plea  in   bar   alle3es   soin.e  :natter  v^liich  displaces   t;-;e    equity 
of   t}je  bill. 

FOliM  OF  PToSA. 

A  plea   is    entitled   in   t\..e    c:-..use,    and  like  a   demurrer   is   intro- 
duced by  a  protestation  against    tl:e   confession  of   tlie   truth   of 
any  matter  contained   in   the   bill, 

T;-'.e   extent   of   f  e  plea,    that   is   v/'iether  it    is    intended  to 
cover   the  whole  bill,    and   if   not    t'le  whole,    w:  at  portion,    s.'iould 
be   distiiictly   shown. 

Leacroft   v.    Durprey,    4  Paije,    124; 
'Summers   v.   Hurray,    2  ."dv/.    Ch.  ,    205. 

Then  follov/s   a  clear  and  positive   statement   of   the  matter 
relied  upon   as    an  objection   to    t}:.e    suit   accompanied,   when   neces- 
sary,  by   such  averments   as   are  necessary  to    its   support.      W^.en 
the   objection  is   to   t^:e   frtu^ie  of   the    suit,    it  .must  point   out    the 
particular  defect   and  how  it  may  be  remedied. 

Merrevv-ether  v.    hellish,    13  Ves.,    435,    438. 

The   general    requisites   of   a  plea  liave   already  been    :iven. 
They  are: 

1.      It  must   be   founded  on  miatter  not  apparent   on  t;ie   face   of 

the  bill. 


XIV.  EQUITY     PL_iJ3IIIG     Al^D     PR;.CTIGI].  79. 

2.      It  rr.ust   reduce    t':e    ca:--e   to  a   siiT-le  point. 

S.      It  must    traver^se   all   averrrierit??   in   t":e    bill  which   teni    to 
disprove  the   truth  of   t}:e   plea. 

4.  It  rr.ust  oe  si^ported  oy  ar.  cUiSwer  if  the  Dill  calls  for 
discovery  touchin;,-  iaiy  averment  in  the  bill  traversed  ana  denied 
by   t]:e  plea, 

Dwi-ht   V,   l\-j,   Co.,    9   Fed.    r.ep.  ,    735. 

"  "        "        Cas.  .,i;c.    PI.    &  Pr.,    213. 

After  the  plea  has  oeen  drawn,  it  must  oe  signed  by  counsel 
and   sworn   to    oy   fjie  defendant,    as   true   in  point   of  fact. 

Gnder   t':\e  United  States   o.nd  ilichi^er:  practice   no  plea  can   oe 
filed  unless   it    is    accompanied    oy   a  certificate   of    couiisel   tVat 
it    is,    in  his   opinion,    v/ell   foiinded   in  point   of   law,    and    oy   the 
affilavit   of   the  defenda:it    tlis^t   it   is  not   interposed  merely  for 
the  purpose  of   causin^j  delay  in   the  pro  ^ess   of    the   sudt. 


when   ti-.e  plea   is   filed   the    complainant  rr.wst    eitrier   set    t].e 
couse  dovm  for   rearing  on    the  plea,    or  file   a  replication   to    trie 
plea.      If    the  plet^  is   set  down  for  hearin'T   the    trutli  of  all   the 
avennents   in  tl..e   plea  well  pleaded   i!=    ^-.drnitted.    and  the  only  ques- 
tion for  tr.e   court   to  pass  upon  is    the   sufficiency  of   the  plea. 

Kellner  v.    Ins.    Co.,    43  Pea.   hep.,    623; 

Foster  V.    poster,    '31  Vt.,    216; 

ITev/ton  v.    f:;ayer,    17  ?ic>. ,    129. 
If   a  replication  is   file;i   to   the  plea,    the   complainant   there- 
by  ridrnits   V\e  sufficiency  of  tl  e  plea   in  lav;,    and   the   only  ques- 
tion in  issue   is   t"-e   truth  of  the  matter  ple.aj.ed. 

Little  V,    Stephens,    32  ilich. ,    595; 
■   p;  rley  v.    Kittson,    120  U.    S.    303. 

"  "  Gas.    ii.q.   PI.    dcPr.,    133. 

■v/ilson  V.   '...'ilson,    5   Ir.  .i:q. ,    J14. 
It    becorr.es   very  ir.iportant,    f:  orefore,    for    the  cor.plainant   to 
determine   in  the   first   instajice,    whether    the  pie.,   is   j;ood  in  law, 
beccx;se,    if   it    s/iould  oe   oad   in  law,    but   the  matters  pleaded   true 
in  fj:.ct,    and  he    slio-^d  tal-:e   issue  upon   the  plea,   by  filing  a  re- 
plic  ;tion   the  plea  v/ould  be   sustained,    notwit'  stgaadinj  it  was    oad 
in  forrr,  and  the  r.-.atters  pleadei  were  no    bt.r   to   complainant's    oill, 
because,    by  filin~   the   replication,    the   coroplalnant   ad.:.its   that 
the  matter  ac  pleaded   is   a   oar   if   true,    aiii  he   denies  .nerely  the 
truth  of   t}ie  matters   pleaded. 

Bo -ardus  v.    frinity  Church,    4  hai^e,    173; 

Harris  v.    In ':leiew,    3  P.   ■.7ms.,    94,    95. 
If   there   is  a  plea  to   a  part    of   the   oill   and  an   answer   to    t  ;e 
rem£dnder,    or   a  demurrer   to   a  part   and   an   ansv;er   to   the   remainder, 
t^e   complainant  m.ust  not   e.zoey.i.   to   the  ai:sv/er    oefore  t'-e   suffic- 
iency uf   f-e    olea  or    iemurrer  h:.s    oeen    letermdned.      ^xce]?t^x\^  ^ 
to   the   ansv/er  is   an  admission  that   th.e  demurrer  or  plea  is   sul- 
ficient.      /jfter   the  plea  or    demurrer  has   oeen  overriae?.  tnen  tne 
complainant   ccji   except   to   the   c^nswer. 

llilf.    3q.   PI.    317; 

Kupers   v.   Reformied  Dutch  Ch.  ,    5  Pai^e,    57o. 


XrV.  EQUITY     PI^iADI'JG  J^lTD     PRACTICE.  80, 

A  de.Tiurrer  muse    be  good  as    to    the  whole  bill   or   so  much   of 
it    as   is  covered.      It   cannot    oe   .^^ocd  in  part   c.nd   bad   in  part.      But 
if   t?ie  plea     is  not    -ood  for   t>ie  wh-^le  of  the  part   covered  it  ao.y 
be   good  as  to   a  poi  tion  of    it   and   be  allov/ed  to    stajid  for   the  part 
wiich  it  properly   covers. 

DoriTier  v.   Fortescue,    2  Atk.  ,    284; 

French.  v„    Shotv;ell,    b    Johns.    Ch.,    555. 

Kiricpatrick  v.   White,    4  V/ash.    C.    G.    595; 

Fitzmaurice   v.    Sadler,    12  Ir.   i-q.  ,    136. 
"A  plea  caxi   be   allowed   in  part   only  with   respect   to    its   ex- 
tent--the  quajitity  of   t.ie   bill   covered  by  it;    and   if  arjy  part   of 
f  e  defence  made  by   the  plea  is    bad,    the  whole   aaiount  must  'be 
overruled."  iMoe  v.   Noe,    32  J.    J.   2q. ,   469; 

Pitz.'caurice  v.    Sadler,    12   Ir.   .'•-q.,    136,    151. 
If   tVe  ple?<,   is    set  down  for  ]iearin£^  and   t}:e   court  holds   that 
it   is  ftoo^   i-*^  form  and   in   Ip.w,    the   complainant  ns.y   then   taie  issue 
upon   it   by  filin'T  a   replication.      After  a  replication   is  filed 
proofs   are   taken  as   to    tiie   truth  of   the  plea  sj:d  then  a,  he..ring 
is  had  upon  that   isi?ue.      The  sufficiency  of  the  plea  is   no  longer 
an   issue,    the   court    is   simply  called  upon  to   determine  wh_ether  or 
not   the   defendant  has  by  his  proofs  r/iiintained   t?:e   truth  of  his 
plea. 

LIcEwen  v.   Broaihead,    3   Stockt.    (.-.'.J.)    129-131. 
If   the  plea  is   allowed,    it    is   t>iereDy  determined  to  be   a  full 
bar   to   so  m.uch  of   the  bill   as    it   covers. 

Story  Eq.   PI.    §    6'J7 . 
If   the   court    should   consider   that  althour^h  the  plea  may   be 
good  sjid  the   fo.cts   pleaded   true  from  t'-e  proofs   then   before   the 
court   but   t;iat   there  may  be  m.-uter   disclosed  in   evidence  which 
would  avoid  it,    in  order  that   the  complainant  r;.ay  not  be   deprived 
of  his   rigl-its,    it  will  direct   that   the   benefit   of   tie  plea  shall 
be   reserved   to    the  defendant   at    t:^e  }iearing. 

Lord  Redesdale,    245.        Mich.   R.    8. 
The  plea  upon   the  arj.^'JTient  ;. ay   be   ordered    co    stand  as    en 
answer   to    so   much  of  the  bill   as   is   covered.      Aid  in   such  a  case 
the   answer   is   to  be  held  sufficient  unless   the   defenda.it   is    .jiven 
leave   to   except   it.      It   is   oi-.ly  ordered  to    stand  as   an  answer  v^lien 
it    is   in   some' way  defective   so    that   the   trutj..  of   it   is  douotful. 

Orcutt   V.    Ounes,    3  Paige  450, 

Beall  V.      Blcake,    10   Ga. ,    456-, 
Mic:'-jL'Tan  Ch.   Rule  6.    f.,   provides    tiiat    i" ,    upon  issue,    tne 
facts   stated  in  the  plea   be  determined  for  th.e  defendant,    tney 
shall  r.vail  him  as   far   as   in  law  and   equity  the:/    ou'jht    to   avail 
him-    if   the    facts    are  determduvd  for  thc-r  complainant   the   efiect 
j^-^ail   be   the   sa^me  as   thou:?h  the  bill,    or    so  m.uch   thereof   as   is 
covered  by  the  plea,   was   t  ihen  p r  c-   confesso. 

GVExJ'.UI-ING  PLEAS. 

V/hen  a  plea  has    oeen   set   dovm.  for   ar^^ment   ajid  on  the  argu- 
ment  the   court    is   satisfied  that   the  plea  caimot  under  any 
circumstances  be  made  use  of   as   a  defence,    it  will   oe  overruled. 


XIV.  .  ■}:qjjiT£    pi^adi::g    md    practice.  ei. 

Aiid  if  it   is   a  frivolous  plea   Vr.e  com.plr.inant  may,    if  he  desires, 
have   an  order   to    take   t'.e    Dill   as   confessed. 

Bo-wman  v.   Marsr.al ,    9  Pai-^e,    78; 
Mich.   R.    8   d. 

If   t::e  plea   is  not  frivolous,    t;ie  effect   of   overruling  tlie 
plea  is   to    impose        \ipon   f^e   defendant    t>e  necessiry  of  raking:;  a 
new  defence.      ihis  he  ray  do,    by  a  nev;  plea,  or   by   an  answer, 

Chadwick  v.    Eroadwooi,    3  Be.tV.  ,    303,    31o. 

This   rule   :?;ivln-s  the  defendant  a  ri  '■•..t    to   plead  d_e  novo   does 
not   pern-.it  ]iim  to    rest  hio    second  plea  upon   t're   sar.e  ^ound  as 
t"-.e   fir?t.      .'.nd  when  a  plea  has    oeen  overruled  upon  the   ..erits, 
tiie   sar.ie  !nat"'"er   cannot    oe   -et  up    in  th.e   ccnsvrer   as   a  defence   v.-ith- 
out  perrrdssion  cf   t:;e  court. 

Tovmsend  v,    To?/nsrend,    2  Paige,    413; 
Piatt  V.    Oliver,    1  McLean,    295; 
•  Rin^old  v.    Stoi^a,    20  Ark.,      526. 

And  if  the  defendant  desires  to  plead  _le  novo  he  should 
ODtain  leave  of  tl- e  court;  for  a  defendant  may" not  interpose 
:nore   thivi  one  plea  witl-.out    special  leave   of   the    court. 

JicSwan  V.    Sanderson,   L.    Pl=    16  iCq .  ,    316, 

The   effect   of  allow  in;-]:  or   overrulin^r  a  plea  upon  the  ar-^Trr.ent , 
and   the  effect   of   finding   a  plea  true  or  false  tipon   the  hearing, 
are  widely  different   in   t}ieir   effects  upon   the  rights   of  both  the 
complp.inant   3.nd  defendant. 

If   th.e  plea  is  allov/ed  upon  t.  e  ar^ujnent ,    t.^e   effect    is    to 
hold   that   tjie  plea  is   good  in  law,    assuming  that   it   is   tx*ue   in 
fact,    arid   t]:.e    complainant    i3   still   at  liberty   to    ts-ke   issue  upon 
the  facts  pleaded. 

If   the  pli^;^   i-6    overrul-^h  upon   t}ie  aryurient,    the   defendant 
may  put   in  a  new  drjfence.    as  we  have  just   seen. 

On   tl;e   other  hand,    the    decision  of    the   co'^irt  upon   the  hear- 
inj  of   th.e  plea  is    decisive   aiid  find   as    to    so  much  of   the   oill 
as    is   covered  by   the  plea.      If    t>ie  plea  is   fo^jnd   true,    the  bill 
is   dismissed,    and   if  fou:id  false,    ti:e   complainant   is    entitled   to 
a  decree;    for   tiie    reason   that   wrien  issue   is   ta   en  upon   the   plea, 
after  argument   and  a3.1owance,    its   validity  as   a  complete      oar   to 
the   complainant's    suit  hias    oeen  found  by  the   court,    and  nothang 
further   renains,    except   to    ascertain  wpLether   or   not    the  facts  upon 
wiLich  its   validity  depends    are   true.      If   ths    -jruth   is    estaolished, 
then  the  plea  is   found   to   be    ooth   tr-ae   in   f^-h.    as  well   as    iood  in 
law. 

But   if   the   co.plainant   ta^-.es   issuo  up^-^n   the  plea  oy  filing  a 
replicotion  befure   the  argument,    and  con oeraen tly,   before   the  court 
has  passed  upon   its   sufficiency,   by   s.;   ...oing  he  a-^nits    that    the 
olea,    if    true   in  fact,    is  a   c^:    to  his   suit,    and  this    adi.issian 
is  conclusive   so   far  as   the   L-.h:i-.iency  of   the  plea  is   concerned, 
it  being  precisely  the   same   in   "-^ff eot   as   the  allowance   of   the  plea 
by  the   court.      After  the   replication  is   filed,    the  only  question 
in  issue,    as   to    so   much  of   the  bill  as    is   covered  by  t:-.e  plea  is 
the   truth  of   the  plea.      The   complainant  says  by  his  pleadings   in 
effect,    if   what    the   defendant  has   alleged   in  his  plea   is   true,    I 
am  not    entitled   to    any    relief.      T^nile   the    defendant   has,   by  his 


XIV.  -Iv^UITY     PIxEADIN^     A-O)     PP^CTICE.  d2. 

pleadings,    a']jrltted  t-at   all   t"  e   allegations  i-r.ade   in  the  complain- 
suit's   oill   are   true,    e:-:cept   so   far  as  tliey  are  denied  oy   the  plea, 
a.nd  tiiat  his    sole   and  oi^ly  defence  to    the   complainant's   suit   are 
the  matters  which  he  h-5,s  pleaded,    and  if   those  matters   a  e  not 
estat)lished,    that  };e  has  no   further  or   otiier  defence,    and  that 
the   con-plainant   is  entitled   to   a  decree. 

Story  Eq.   PI.    §    697; 

U.    S.    Rule   33; 

Hughes  T,   BlPvhe,    6    :/]aeat .  ,    4L.3; 

Ii'dch.    "R.    8   f. 
It   follows   that  wh.ere   the  complainant   files  a   replication  to 
a  plea,    v/hich  is    true   in  fact,    but   insufficient   in   law,    that    the 
Dill  must    be  dismissed  ujjon   the  haarini^,    oecause  upon  the  hearing 
the   court  will  not   oxajuine   in^-o   the   sufficiency  of  the  plea,    oe- 
cause under  tlie  pleadings    it    is    admitted   to    be   -^ood  in   law. 

Harris  v.    In^^eldew,    3  P.   ^fe:.  ,    91,   94,    95; 

So^ardus   v.    Trinity  Church,    4  Pai.^e,    178. 
On   tiie  other  j.and,    if   the   defendant  has   a   complete  defence   to 
the  complainant's   suit,    cut    rests  his   defence  upon  a  plea  of   some 
matter   vrliich  he  cannot   establish,   he  loses   all   the  henefit   of  his 
defence  upon   f-;  e  merits,    and   crnnot  prevent    the  complainant   from 
obtaining   a  decree. 

Hughes  V,   Blake,    5  "AQieat.,    453; 

Michc    H,    8   f. 
If   the  complainant;    on   the  face  of   the   bill,    is   entitled  to   a 
final   decree,    he  may  have   suoh  decree  upon   the  plea  oeing  found 
false  upon   the  hearing.      If,    noweverj    he   is  not   entitled   to  final 
and   complete   relief  upon   the  case  made,   he   is    entitled  to   an   order 
that    tlie   Dill    be    tshen  as   confessed,   and  for   a  reference   to    a  master 
to   take  proofs.      He  may  also,    if  necessary,    examine   t'le  defendant 
upon  interrogatories   as    to   all  m.acters  which,   by  an  answer,    the 
defendant    should  have   discovered. 

Parley  v.    Kittson,    120   u.    S.,    303; 

"  "  Gas.      c.   PI.   &Pr.,    1^3-135. 


»*********««»*-> 


XV  EQUIT^Y      PL"^-ADI:Tt      AI'D      PRAGTICF..  83 

\  C    -f   A   P   T   E   R      XV 

oOo 

THE   A!^  SKATER 

Prom  v.'hat  has   been   said,    you  ha-^/e    learned    that    little 
or  no    advantage,    except    delay,    is   -^jained  by   demur   or  pie,    except 
6n  bar,    unless    the    cause    for   demui'   or    the    special    defense   made    by 
the   plea  canixit    be   ove-come   or  met    by    an  amendment    to   the    bill. 
Wienever    the   complaint    can    cure  the   defect    for  the  doubt    by   these 
dilatory     devenses    tfeacu  throu[^h   an  amendment,    the  attack  has  had     x 
no  other   effect    save   that  of   strengthening  and  fortifying   the    <x>m- 
plainants  position.      Wien,    however,    the   defect    can'-iot    be    c^ored  by 
amendment,    those  defenses   should  be   resorted^o,    as    they  shorten 
litigation  and   save    expense.      And  in  case   of  v/ant    ^f  pajr'ties, 
or   a  mis-joinder   of  pai^ties   or  multifariousness,    the  benefit   of 
the    defense   on   that    ;ground  is   frequ^Jntly   lost    when  net    taken   by 
derrur   or  plea- 

Turner   V  Hart,    71   Mich.    128   -    138 
But    since   nearly   every    defense    tlia  t   can  be  made    by  demur   or  plea 
can  betaken  advantage  of   equally  well   by   an  answer,    they   are 
usually   set   up   in    the  answer.      This  practice   more    regulalry  pre- 
vails   at  present    than  formerly,    because    since   parties    can  be 
witnesses,    avoidijig   discovery    called   for   by   the   bill   is   now  of 
little    consequence,    while   formerly   it    was  of    the  utmost    importance. 

TWOFOLD    CHARACTr^  OF    AITSWER. 

The  bill    contains   a   statement  of  the    complainant's 
cause   of    action   and   also   an   examination  of   the    defendalit    as    a 
witnes    s   in    the  cause;    the   answer  m.ust,    therefore,    consist   of 
two  parts: 

1-The    defense. 
2-Tlie  discovery. 

In    the  answer    the  defendant   must    set    forth    fully   and 
clearly  his    defense    to  the   complainant's    ca-jse   ofaction,    and 
he  must    also    answer    the  complainant's   inter   ogatory. 
Wade    V  Ru]lisfer,    54   Vt,    45 

Holt    V  Daniels,    61      Vt .    89,    Cases   Eq.Pl.Pr.    221 
It    is  not   necessary   that    the   answer   should  be   divided 
into   two    separate    and  distinct   parts,    the  one    bainn-   devoted 
exclusively   to    setting  foth    the   defendant's    defense   and  the  other 
answering   the    complainant's   interrogatories.      The    two  may  be 


XV  EQUITY      PLEADIMT      A!"D      PRACTICE.  84 


interlaced,    but    the   plaadei",    in  dnawin-   the  answer,    should  keep 
its    twofold  character   in  mind,    and  it    should  be    so   drawn    as    to    set 
out    clearly  distinctly   and  t'ulJy,    all    the    separate   (grounds   of  the 

defense,  and  it  should  at  the  same  t  irie ,  answer-  foully  and  ex- 
plicitely,  all  matters  in  re'3a''d  to  which  the  complainant  asks 
and  is    entitled    to    discover. 

Warren  V  Warren,    30  Vt.    530 
It    is    a  general    ru,  e    that    the   complainant    cannot    rely 
upon   any   grounds    for   release    except    those    contained  in   the   bill, 
and   that   the    defendant    cannot  rely  upon   any    ground  of    defense 
except    that  set   up   in  his   answer,    and    that    all    testimony   intro- 
dvced    fbr  the  purpose   of    establishing    sane  matter  not   claimed   in 
the    bill    as    a  ground  for  release   or   in    the   answer   as    a  gio^ond 
for  defense,    is   immate-ial  and  ir   evalent    and  will   not    be   consider 
ed    by   the    cour  t. 

Morse   V  ?;ors,    17  N.  H.    481 
Buckley   V  Sutton,    28  Mich.    1 
Harrington  V  Br  ■wn,    56  Mi  -  h.    301 
The   defendant  may    set    up   in  his    answer    any  number  of 
defenses    that   are    consistent    with  each  othe  ro   r   rather  that 
are   not   inconsistent,    but    the  defendant  may  not  set   up  t  eo  or 
more    grounds   of    defense   which  are    inconsistent    with  each   ^the, 
and  the   error   will  not    be    cured   in    such    case    by    staging  t  hex«icnc  x 
inconsistent    grounds  of    (fefense    in    the   alternative. 
Hopper  V  Hopr  er      11   Paige   46 

Jesus   college   V  Gibbs,    1   Y.    &  G.    Sx.    145,    160 
Kot    the    same    degree   of   c-^rtaintry   is    required   in  an 
answer   as   in  a   billo      The-'e  must    be    such  a  degre  •   of  certainty, 
however,    as   is    suf    icient    to   inform  the   complainant   of  the  nature 
of    the  defendant's    case. 

Cummings   V  Coleman,    7   Rich.    Eq.       (-.C.)    509 
The    sanB    strictness    is  not   requisite    in    an  answer    as 
Sna  plea,    Mvhere    the    statute  of   limitations   is    set     ip   as   a    defense. 
This  defense,    if    rr    ied  upon,    must,    hov.-ever,    be   distinctly  made, 
either   by    answer   or*  plea,    although   the    defense    that  the  claim  is 
stale  may  be  made    without    any   avernent    to    that   effect   having   been 
made    in    the  answer. 

Maury  V  Mason,    8  Porter    (Ala.  )    ''-ll 
Sullivan  V   Portland,    94   U.S.    806 
■'.'Vhen  matters   of    defense    are    set   up   in    the  answer    which 
might  have    been  taken  advantage   of  by  demi^r   or  plea,    and   the 
defendant,    as   tot  hose   matiers,    claims    the    sane    benefit    in  his 
answer    as   though  he   had    demur -ed  orplead,    it  is  only  at    the 
hearing  of   the   cause    that    any    such  benefit    can  be   insisted  upon. 


XV  EQUITY      PLEADI-G      A:'D      PRACTICE.  85 


Mulloy   V   Paul,    2   Tenn.    C.H.    155 
Hums    '-r   Com-1    Ek.    1   Lea   229 
Zabel    V  Ha'-tmsnn,    63  X^ich.    273 
Holt    V  Daniels,    61   Vt.    89 


FORM  OF   AN'^'J'/ER 

-The  answer  must    be   entitled  in  the    cause    and   a^re  > 
with   the    bill    as    to    the  parties   named   therein.      If   a  mistkae    in 
the  name  of    the   defendant  has    been  inadj   in   the   bill,    such 
mistake    can;-i.ot    be    correcte;    in   the  title,    but    the   cor  rect  io  n  may- 
be male   in   the    body  of  this   answer,    thus,    for  instance:      "The 
answer  of  pobert    Sharp    (in   the  bill   by  mistake    called  Roland 
Sharp ) "   etc. 

Att'y   ."ren.    V.    V/orcestir,    Coop.    T.    Cott.    18 
If    there   is   such  a   defect    in  the  heading  of  the   answer, 
that  it   does   not   appar    dist  iiict  ly   whose    answer   it  is,    or    .n  what 

cause    it    is   filed,    it    will    be    ta  en  off    the    files   for  irregular- 
ity. 

Pritus  V,    Thompson,    ^t.    Coop.    249 

Griffiths   v  Wood,    11  Des.    62 

Fry  V.    Mampell,    4   Beav.    485 
jf,    however,    it   is    evident   :Srhat    bill   is   answered,    it 
will  not    be    stricken   from  the    files    althouf^h  certain  prescribed 
words  have  been  omitfeed, 

Bowes   V  Fari-ar,    L.  Re    14   Eq,  ,    71 
Two   or  more  persons  may  join   in  the    same    answer,    and 
when  they   ap-  ear   by   the    s'ime    solicitar,    and  have    the  sarre    defense 
they  ought   to  join,    and   the   court    will  not,    in         .case    they 
should  succedd  in   the   suit,    allow    them  any  more    costs,    in   case 
they  file   separate    answers    than  would  have   been  allowed   if   they 
had    filed    a  joint    answero 

Story   Eqt      Pi.    Par.    869 

Woods   V  Woods,    5   Hare    229-    230 
The    answer    should   be    divided  into   par ^/^rpphs  numbered 

._  .  consecutively    and    each  paragraph   should   contain 

a  full   and  distint    statement  of    som.e    allegation.      The   present 
Michigan  rule    requires    the    answer   to   be    divided   into  paragraphs. 
Documents  not   on  file    in  the    case    cannot    be  referred    to    and 

made    a  part   -f    the  answer >    but  may  be   when   so  filed. 

Wells  V  Stratton,    1   Tenn   Chan.    328 

Atty'    Qen.    V.    Sdm^jnds    15  W.  R.     138 

U.  S.CC.    Rule    4 

Mich.    R.    10   G. 


XV  EQUITY   PLEADI'TG    AND    PRACTICE.  ®^ 


\'.^en    two   deftjnclants    answe.-   jointly   and  one   speaks  posit- 
ively   toward  himself,    the   othe.r  may   say   that    he   has  perused    the 
answer,    believes   it   to    be    trua    and   that  he  make  it    apgrtofhis 
answer.      This  he  may  not    do  however,    if    they   answer    separately. 
Binneys   Case,    2   Bland.    99 
Warfield  Y  Banks,    11  Guild,    &  J.    98 
Car'-   V  wel's,    3   G.E,    Green    (N.  t.  )    41 
The  anser  must    be    sif^ned    by   the    defendant    or  the 
defendant's  puttinfr;  it    in,    unless   leave   has    be    n  obtained   to    file 
an  answer  not    si^';^ned,    the    cause   orir;inally   the    answer   was   always 
under  oath  and   was    testimony   in  the    cause. 

Denison  V  Bassford,    7   Pa^e    370 
Cook   V  Do-^s    2   Tenn  Chan.    496 
Kimball  V  Ward,    Walker's   Chan.    439 
Li    tlejr.hn  V  Munn,    3   Pa^e   230 
C'llard  V.    omiti-i,    2   Beasley    (   N.  T.  )    43-45 
Howes   V   Downinf^,    !'>.      Mich.    43 
Dumond  V  Magee ,    2  Johns   Chan.    240 
'-^ardins  V  ^'ardln'-,    12  Ves,    159 

Supervisors   etc.    V  Miss.    etc.    R.  R.    ,    21   111.    337 
The   Michigan  practice   pe'-mits    the  answer    to    be    signed 
by  the   defendant,    or    by  his  a^  nt   or    soliciter. 
Mich.    R,    10   e 
The   answer  must    also    be    sifrned    by   sounsel.      ^^tien   such 
counsel    are    a   firm,    the  firm's    sif^natura   may  be  used. 
Bishop  V  Willis,    5   Beav,    83  n 
'-'ampton,    V   Coddin,:;^ton,    1    Stewo    Eo.     557 
Henry  V   Gragory,    29   Mich.    68 
Eveland  V  Stephenson     45  '.'ich,    394 
U«S.    Chan.    Rule   24 
The   copy   of    the  answer    served  on   a  complainant    is  pre- 
sumed  to    be   a  correct    copy  of    the  answer   filed,    and  if    the    sig- 
nature  of    the   co^ansel   is   omitted   from   the   copy    served,    the  com- 
plainant  may  move    to   take    the    answer   off    the    files    for  iregularity. 
The  signing  of  the  ans'.er    by   the    defendant   may   be    waived 
by  the   complainant,    and  if   an  unsigned   answer   is  put  in  and   the 
complainant    files    a   repetition,    that    ,-tep   on  his  part    will    be 
heldto    be    susha  waiver. 

Fulton   Bank  V  Beach  2  Page   307 
The   court,    under    special  circitmst  ances    will   permit    the 
defendant    to   file  an  an  wer  not    signed  by  him,    as   when  he  resides 
at   a  distance,    or  has   gone   abroad  before   an  answer   could  be  pre- 
pared or    the    like. 

Unles    s   answer   under   oath  is  expressly   ^vaived  in   the 
bill  the   answer  mu  t    be   sworn    to    before    the  proper  officer. 
■Who   is    such  proper  officer   depends   upon   the  provisions  of   the   local 
statute    and    the  rules   iSf    the   court. 

Sitlington  V.    Brown,    7   Leigh    (Va)    271 
Mich.    R.    10   b 


XV  EQUITY      PL'^ADI-  G      A^^D      PRACTIC".  37 


The  answax-  of  a  corpor  ;tion  is  put  in  undev  the  cor- 
porate seal  an.'^:  not  untile'  oath.  If  it  is  put  in  not  under 
seal   it    will    be    taken  from   the   fil'es    as   ir-egular. 

Ransom  V  Stonin."-ton   ^>av.    Bk.       13  M.I.E.    21 

!.'ill   Dam  m'y  V  Hovey,    20   Pick.    41^ 

Bacher  V  Anderson,    45  Mich.    543 
But   ijinless    the   ans'ver  of    the    corporation  is    sworn  to 
it    cannot    be   made    the   basis  of    a  motion   to   dissolve    a  temporary 
inJLXinct  ion;    since    an  inj\inction  will   not    be    dissolved  upon   the 
filing  of   an  answer  not    on  oath  denying    the   equities  of  the    bill. 

Fulton   Bk.    V.    ]\Y.    etc.      1   Pai.'^e    311 

Griffin  V   State    Pk.  ,    17   Ala.    258 
when   the   ccmplainatn   desires  to  obtain   from  the  corporat- 
ion the      answer  of   sane  of    icer  of    the  corporation  undex-   oath, 
such  officer  must    be   named   and  made    one  of   the  defendants   in  the 
bill. 

Buff  or  d  V.    Rucker,    4    J  J   Varsh   551 

Vermilyca  V  Fulton   Bk.    1   Paige   37 

Be  ache  r  V  Anderson  4  5  ¥lch   543 
When  the    complainant   waives    an  answer  on  oath   the    answer 
is   treated   as    a  mere   ploadin^   and   is   not    evidence    for    the    defendant, 
but    the   plv.intiff  may    take    advantage  of   any  omissi-n  made    in  it. 

Bart  let      V  Gale,    4   Paige    504 

Wilson  V  To-  le,    56   N.H.    129 

Dijrfee   V.    McGlurg,    6  ^ich.    223 

^'^hen  the  bill    waives    an    ansv/er  under  oath    the    def- 
endant   c   not    taal'ce  his    answer    evidence    by  put    ing   it    in  under 
oath.         Unde  ^    some    c  irciamstances   the    sw^rn   answe'    v/ill    be        con- 
sidere   d  as   one  not   under  oath. 

Hyer  V  Lit    le    ,    5   C.  S.    Green,    443 

ciymes  V  Strong,    1    Stew.    i^q.    131 
The  Michigan  rules  provide    that    a  sworn    answer   shall 
not   have   the   force   of  evidence    except    as    to    admissions. 

Mich.    Chan.    Rule    10   a 
An  unsworn   answer   cannot    be   made    the   founda.tion  of 
a  motion  to  dissolve    an  injunction;    but,    if    an  injunction   bill 
waives   an  answer  under  oath,    the    defendant  may    still  put    an  answer 
under  oaht  and   so    treat   it    for  the  purpose   of  moving    to    dis  -olve 
the  injunction  granted  on  the  bill. 

Doughrey  V  Topping,    4   Paige    94 

Mahony  V  Lazier,    16  !Id.    69 

Rainey  V  Rainey,    35  Ala.    232 
^Tnen   the  answer   is   drawn,    signed,    and  if  neces   ary   sworn 
to,    it  must    be    filed    and   a  copy   served  upon  the   complainant    v/ithin 
the    time   prescribed    ty    the   rules/ 

U.S.    Rule    18.    Mich.    Rule    5 


TV  EQUITY      PL"^.A^I"n      A^"^.      PRACTICE  88 


It    is    a  general    rule    that  if  the  defenda   t    consents    to 
answer  he   must    answer    fully.       But    it    is  an  open   question    st  iJ  1, 
althou'^h  it   has    been  much  discussed  whether   a   defendant    who 
answers   a  bill    for   an  acco^jnt  in.-^;      for  instance,    if   the   bill 
calls  for   a  co-pa   tnership    acccruntin   tZ  and  the    answer   denies 
the    co-partnership,    he    is    still   required  to   ans^Afer    fully  all    the 
interrogatories    tai.ciiiing   the   account. 

French  V  Rainey,    2  Tenn.    Chan.    640 
Chan.    Cooper,    in  Fr;nch  V  Rainey,    supra,    reviews    all 
the   a'Jthorities   on  this    question  up   to   the   date   of  his  opinion. 
It    would   seem   that   in   such  a    case  much  is   left   ot   the 
discretion  of    the    court.      D isc  over  y  v/ill  not    be   required  fihen 
it    will  be  merely   vexatios. 

Locker,  t  v   Locket u,    L.  R.    4   Chan.  336 

Story  Eq,    Pi.     (10   ed,  )    F^ec.    856S  n2   t. 

Be  ;bow  V   Low  L.  R,     16    Chan.    D.    93 
If   an  answer  on  oath  has   be^n  waL  ved  in  the  bill  the 
complainant    cannot    except    to    the   ansv/er    filed   as   not   having 
fully  answered    the    allegations    contained   in  the   bill.      In    such 
a  case    the  answer   is    a  mere  pleading,    but  he  may    still  except    to 
the    answter   for   impertence   or    scandal    if   it    is  padded   with   ir- 
relative matter,    or   tainted    with  unnecessEry  comments   or    affecting 
the  moral   character   of   anyone.      If   an  ansv/er   on  oath  has  not    been 
waived,    and   it    does   not    contain   a  full   disclosure    of   all  matters 
in  r  igard    to  which    the    defendant   has   been  interio  gated,    it   may 
be   excepted    to    for    insufficiency.      The   steps  necessary  for  the 
complainant    to   t  =^ke    in  excepting    to   the  answer   either   for  in- 
sufficiency,   impertinence    or  scandal,    are   prescribed   by  the 
rule  So 

U.S.    Rules   26,    27; 

Brooks,    V   Byam,    1    "tory    296 

Stafford  V  Brown,    4   Paige,    88 
The    exceptions    are    entitled   in   the    cause    and  they  must 
point   out   positively   and  distinctly   the  matters   in  the   answer 
which  ai'e   objected  t  o    as   impertinent   or  sc   ndalous,    or    those 
parts  of   the    bill  which  have   not    been  fully  answered.      They  pray 
that    the  scandalous    and   impertinent  matter  may  be   expunged,      or 
that    the   defendant   may  put    in  a   full   answer.      They    are    signed 
by    the   coionsel,    filed,    and    a  copy    served  upon  the   opposing 
so  lie  iter.      The    defendant   may  submit    to  make    a  further    ans-.er, 
to  have   the  matter,    objedted   to   as   impertinent   or  scandalous, 
expunged;    if  he    does  not,    the   answer    and   the   exc3ptions   are   re- 
ferred   to    the  proper  officer    to    examine    and  to   report   whether 
the    exceptions    are    well    taken. 


XV  EQUITY      PLEAnil-^a      AMD    PRACTICE.  89 


Brooks  V   Byam,    1    Story   295,    Cases   Eq.    Pl.^c  Pr.    235 

Stafford  V,    Brown,    4   oai/^s   83,      Cases    "Sq.    Pi.  4  Pr. 

242 
Under    the  Mich,    practice    you  nay  not    except    to    an 
answer    for  insufficiency. 

McCreery  V  Circuit    Tui.-^e,    93  !':icb.    463 
The    defe'n.dant  may  claim  i-\  his    gns'ver    the   benefit    of 
a  general  demur    for   want    of  eqmty.      courts   are   not,    howevT?  r, 
disposed   to    favor    such  m  xei    and  unsatisfactory  pleading,    and 
they  hold  that    in    u  ch  a  case    t?ie    defendant   may  upon  filing   a 
replication   take  pr-oi's    and  have   the   case   heard  upon  the  merits. 

Lamb  V   Teffrey,    41  Mich.    719 

Hewlett,    V   Shaw,    9   Mich.    34  6 


AMSNDIITCt    AITSWERS. 

•'•fhen    an  answ  r  has    be.^n  put    in  on  oath,    the    court     -1.11 
not   permit    it    to   be    anBnded   in  matters  of    substance,    except    under 
very   exceptional    and  special    circumstances.      ^'Aiere    the  proposed 
amendment    is    to   the  form  of    the    answer  merely,    or   to   co-rect    seme 
mistake   of  da^.e,    or    a  verbal   inaccuracy,    the    court    will  not   hes- 
itate   to    grant    leave    to    amend. 

Bowen  V.    Cross,    4   Johns   Chan.    37  5 

Webstar   Loom  no.    V  Hig-ins,    13   Blatchf.    349 

Gainsborough  V   Gifford      2   P.    Wms.    424 
The    co'art    will   also    allow   the    defendant    to    amend  his 
answer,     vihere   new     matter   has    bean  discovered    since   the    answer 
was  put    in. 

TilUnghast   V   Champlin,    4   R.I.    128 
Or    to    cor'.-ect    a  mistake   when  owing    to    such  mistake, 
an  omission  has   be  n   made    to    the  prejudice   of  the  defendant. 

Hughes   V  Bloomer,    9   Paige    269 
The   court    will   not,    however,    permit    amendments   of    this 
nature   to    be  made   merely  on  the   ground   that    the    defendatn     whin 
he  made    the   omissions,    was   laboring  undar    a  mistake   of  law, 
and  when  no  mistake    of    fact   has   be  jn  made. 

Rnwlins  V  Powell,    1   P.    ""/-s.    298 

Pearce   Y  Grove,    Amb.    65 

P  arce   Y.    Grove,    3   atk.    522 

Mich.    Rules,    16   -    17 
The    strict    rulesof    the   common  law    are    relaxed  whs 
the   ans'v  r,    whether   under   oath  or   not,    is    a  mere   pleading.      The 
reas'->n  for  such  strict    rules    was    found  in    the    fact    that    the  de- 
fendant   by  a  proposed  amendment    sought    to  vary    and  alter  his 
testimony.  Verplanck   V  Mercantile   no.,    1   Edw.    Chan.    45;    on 

cases  Eq   PI.    &  Pr.    269;  Thorne   V  Jujnand,    4   Sfolins   Chan.    363, 

Cases    Eq.    Pi.    &   Pr.    276 

— 0--0--0--0--0--0--0-- 


XVI  EQUITY      PL.'^.ADI  ""■T      A^D       ••"RACVIC5  90 

CHAPTER        XTI 

oOo 

SUPPL  '^I.'ENT  POj   a:  ■'^VvTRS  . 

It    is    the  usual   practice,    at    th-3  present    tims,    to    file    a 
supplemental    answer   instead  of   amenrlin,^   the   ori^jinal   answs-'. 
Application  must    be   made    to   the    court    for   leave    to   file    such 
supplemental    answer,    and   the   same    rule?   govern   such   applicatons 
as    those   for  leave    to   a'.iend. 

Brovm  V  Racket  ts,    2   Johns   Chan.    425 

"  "  ."ases   Ea.    Pl.'-c  Pr.    250 

Arnand   V  Grig-,    2   <^,tev//  Eq.    1 

Qmith  V   o.rmth,    4  ^ai;_f^e  92 
In  making   an  application   to    file   a   sup^^i  ement  al    answer, 
the    def-endatn  must    show  that   justice    requires   that  he    should    be 
permitted    to  make    tine    correction  in  his   answer  or    the    additional 
defense.      And    the  motion  for   leave    to    file    the    supplements   answer 
must    be    accompanied   by  an  affadavit    setting   forthe   upon  which  the 
motion   is   founded, 

Thomas   V   Doub,    1   :/d.    252 

McKim  V  Thompson,    1    Bland.    150 

Wells   V  ^Vood   10  Ves.    401 
when  a   defendatn  has   obtained   leave    to   file   a  supplement 
al  answer,    he  must    confine    such  answers   strictly   to   the   m.atters 
set    forth  in  his   app 3-1  cat  ion  and  in  which  he   has   received   the 
leave   of  the    court    to   embody   in   such   answer.       ^f      e  goes   beyond 
that,    his    si;5)plemental    answer    will    be    taken  off    the    file. 

Strange   V  Collins,    2  V.  &  ^i.    163   -   167 
The    e  is  no  particular    tim.e    v/ithin  which  the    defendant 
must   make    an  application  to   file  a   supplemental   answer,    provided 
he  make    it    iss    soonas    the  er   or  ar    admission  in  his   ans^ver, 
or  the  newly  discovered  evidence   has    cone    to  his  knowledge, 
must      not    be    guilty  of   inexcusable    laches,    and   furthermore    it 
must    be  possible    to  place    tlie    complainant    in   the    same  position  as 
he   would  have   been  in  kad    the   correction  or  nev«-  matter   been 
stated   in   the   original  an^-wer, 

Martin  V  anderson      5   Ga.    390 

Ruggles   V  Bdciy,    11    Blatch.     524 

Fulton  V  Gilr.an,    8   Esv.    154  -158 

Mason  V  Hartford   R.  R.  ,    10   Fed  Rep.    334 

"  "  Cases   Eq.    PL.  <i  Pr.    246 


XVI  Eouivy    plp'.adt''"t    ajt'^    p^ actio"  91 


TAKING    AFSV.r'^.a^   0??   THE   FILE. 

As   we   have    sean,    an   ansv/e..'  may  be   t  -ken  from   the   files 
if  any   ir.;egularit  y  has   occitt'ed   in   its    frame   of   form.      "^ut    the 
plaintiff  m-ist    ap^ly   to  hz-ive    the   a-;S'Vers   taken  froir.  the   files 
before   he   excepts    to    it,    othe^'wise   lie    will   have    waived   the   irre~- 
ulai-ity.       It    is    a   giner-;l    mle   in  pleadinrj    th-.t   a  positive    step 
on    the  basis   of    some   prior  ple^iding   is   a  w--.  iver  of  any  irregular- 
ity in   SLich  pie -ding. 

Fulton    Bk/  V   Beach,    2   Psige    307 

9.0.     6   '"end.     36 

Seifried  V  Peoples   Bk.    1   3axt.    200 
Not   only  may    an  ans    j  r   be    taken  from   the    files    for   an 
ir   egularity  in  its    forai  but    if  on   its    face    it    is   evi    dently 
evasive    the   complaninat   may,     before  he    excepts  to   its    for  in 
sufficiency,    move    to  h3.ve   to   hav3    it   taken  from   the    files. 

'rlassington   V  Thv/^ites,    2   P.uss.    453   -    462 

Seat-.n  V   C-r?.nt,    L.  R.    2   Chan  App-    459 
The   court    will    also,    sometimes,     in    case    the  pleadings, 
af  adavits   or   other  documents   contain  matters    which,    on  aco  unt 
of  its    character,    should  not    r   main  of    rscord,    although  not 
scandal  'US    because   pertinent^    permit    them  to    be   t     siken    from    the 
files   upon   the    consent    of    all    the  par    ie^    to    the    sijii  t. 

Clifton  V  Bental  ,    9   ?,eav,    105 

Y/a  It  on  V   Eroadbent,    3  rrare    334 
•  Seaton  V   nr'-ant,    L.  R.    2    Chan  Ap"'-,    Cases   459 

J0I!'DER   07    SS\n5RAL   DEFENSES. 

All   or   any    tivo    -f    the   several   modes   of    defense   may   be 
joined,      A  defendatnt   may  demur    to  part    of    the  bill,    p    ead   to 
another   part,    answei-    to   a    third  part    and   disclaim    as    to    a  fourth 
part.      Each    separate    defense,    however,    may   relate    to    a  sepa*'ate 
and    distinct   pai't    of    the    bill, 

Clark  V  Phelps,    6   Johns   Chan  214 

j^.ivingston  V   otory   9    Pet.    632 
A   defendatnt,    as    v,e    have    seen,    cannot   pie       d  to   that 
part   of  the   bill    to  wl-iich  he  has   demurred,    nor    answer    to   any  part 
to    which  he   has    dem.urre  ■    or  plead,    nor   by   answe^'   claim,     hat   by 
disclaimor  he  has    declared  he   has   no    right    to;    because    a  plea 
or  answer,    will  overrule   a  demur   er    and    an  an   swar   a  plea,    the 
one    defense    being   inconsistent    with  the  other,    the  court   pre- 
ferring  that    which  rests  upon   the  merits 

Bolton   V   "ra   dner,    5   Paige   273 

Spofford  V  Man-^ing,    6   '^aige    583 


Xl^I  EQUITY      PLEAr^lNG      AlID    PPACTIC-i:  92 


'"^3n   a  demur   is    to   a  pa   t    of    tho   bil]  ,    and   the  e    is    an 
answer   or  other    defense    to    the  remainder  of   the   bill,    it    should    b? 
entitled:    "The    Demurre  ;■  of  A.Y>.      t]ie    above   named  defendant, 
t    0    a  pa"t    of   the    bill   of    complaint    of    the    above   named  plaintiff, 

and  the   ans'ver   of  the   said  A.  5.    to    the   remainder   of  s?-id   bill." 
when  there   is    a  plea   to   the  part    of   a  bill    accompanied   by   an  answer 
to   the   remainder,    the  p]  ea   and    ans  er    sVou]  d  be   entitled    as 
above,    except    that  plea   is   inserted   in  place    of  demur   er. 

Tomlinton  V   Swinerton,    1  ?:enn.    9-13 
■>vhen  the   answer,    hower,    is   in   support   of   the  plea,    the 
title   is    "    Plea   and  Answer." 

These    cart  ions    are   not   mere  matters  of   for  m.      Tf    the 
answer   by  tis    com  ri cement    is    apparently    an  answer   to    the    wh    -le 
bil],    it    will  overrule    a  plea  or    d  mur;'er   to    a  part   of  the    bilJ, 
although  it    does   not    answer    that  part    covered    by    the    dem.ur  'er   or 
plea. 

Leaycraft    V  Dempsey,    4   paige   124 

qum-ers  V  L'ur'/y,    2  Edw  Chan.    20  5 
If    the    ans'.ver    contains   a  f-'oll    and    com.plete    discl'^dure 
and  t  I'e  r   is   no    im.pertinent   or    scnadalous  matter   in  it    to    which 
the   c ''implainant    desires   to    except,    he   must    determine  whthe  he   wil 
go    to    a  hearin{5  upon   the   bill    and   answer.      If,    assuninf;;   that   a'Jl 
the  material    ave--ments   of  the   fact    contairs  d  in    the   ansv.'er    are 
true,    the   case   made    by  the    bill  has    been    admit    ted,    thx  he   may 
notice    the    cause   for  hearing^       In   t  M  s  case   no    al'^  f-^ation  made    in 
the    bill,    altlTD    ugh  put    in^-indei*  oath,    will    be   scnsidered  as    evi- 
dance    in    the  saue,    and   all   the  material   averments   cent  aired  in 
the    answer,    although  not    put    in  u^der  oath  are  held  t  o   be  true. 
In   short,    the   complainant   must  rely  wholly  on   those    aUgations 
inthe    bill  which   the    defen  dant   has   by  his    answer    admitted   and 
those    admissions    are   to    be    taken  with    alle   the   reservations  and 
explanations   contained   in    the  answer.      The    alS  Rations  in   the   bil    1, 
admitted    by   the  answer,    must    be    sufficient,    af<feer    being  emasculat- 
ed by   the   explanatory  m.atters    contained  in  the  answer,    to   entitle 
the    complainant    to    the    relef  prayed    for  ,    or  he   will    fail    in  his 
suit.      The    case  must    be   clear    and    strong,    te  refore,    which  will 
justify   the    o  mplainant    ia  going    to    a  hearing  on   the   bill    and 
answer. 

Cont  36   V  Dawson     2   Eland  264 

Child  V  H'jrr,    1   pOle    (la.)    432 

Ro g  er  s   V .    Lli  t  c  he  1  ]  ,    41   N .  H .     ,54 

Pearce   Y     est,    1   Peter.^C.G.    351 

Cumndngs    r-orey,    58  Mich  494 

Weigart    V  Frank,    56   lv;i  ch.    200 
Durfee   V   McClurg   6   Mich  223. 


XVI  EQ.UITY      PL/^"'I':"-      A--D      ?i.AC/''ini.  93 


If    r.he    Ho.3\i,.c    r  .  -^t -i'ls    zny  matts.v,    not    rosponsiv'3    to 
some    interj'orratories   in  the  bil',    b-jt    stated   by  way  oT    defonse, 
and  no    x-eplicat  ion      is    filed,    the    t  u  th  of    s^jch  nev/  matte  ",    if 
mate':-   ial    and  r -levant    is   admit    ed. 

:;azet   V  Pit    sbarg,    137   Penn.    "^t.    548 

Am.    etc.    riQ.    V  Chipman     140  "'ass.    385 

Davenpoi't    V  Aud,    -e  i.    70   :.'ich.    192 
Tl^.ere    is    an  exception  to   t'e    rule    that    the   complainant 
C'.n  go  to    a  he.;  L-in'i  on    f^^e    bill   and   answer   whin  the    admissions 
contained   in    the  ans-vei-   are   s^'xfricie  ntly    i'ljll    and    explicit. 
ITo   decre.^    can  be  taien  on  a   bill    confessed   a^i'ii-nst  an  infant 
defendant,    or  on  an  ais'.vif  of   a  ^uai-di-'-n   ad   litem  admitti  n.r; 
the    alle/';at    ~n  cons   ine  d   in   th-e   bill,    but    the    complai   ant   must    igi 
either    case    sust  ran  his   biJl    by    evidence. 

Thayer   V  Lape ,    T/aU<.    Chan.    20  0 

C'andlerV  McKin.iey   6  I.'.ich.    216 

qMth   V   c^rnith,    13   -'ich.    258 
Upon  the  h  :ar  in.^  of  a  cause   upon   bill    and   ans'^'/er   no 
proof  is   introduce'^    by     either  party,    but    if  the  ans-ver   refres    to 
the   matter   of    r3cord  proved   by  the  r  scored   itself,    or   to   exhibits, 
the    r^crrd    and  exhibits    ar'v>   r.'gardedas   a  part   of    the   answer    and 
may  be    rad  in  el/idence, 

Roland  V   ^turgis    ,    2    'aire   520 

Chalk   V   -^viine,    7   "^'aire,    393 

Lej^ard  V  '=!heffieJd,    2   Atk.    377 


REPLICATION 

ir    the    canplai    snt    cannot    co   to   a  he'rin.f^  on  the    bill 
and   answer  he  must    join  is'ue    by  filing;   a  replication   to   the 
answ.-r.      Ac^'ording   to   the    ea^-ly    sj/'tfeem  of    the   eqmty  pleading, 
if   the    defendatn    set   up   in  his   ansv,'e-.-    some   nev!  matter-,    to   which 
the   complainant   had   a  perfect    defense,    he  set    this  up   in  repli- 
cation,   and  if  h.e   w   nt  ed  a   discovery   from   the      defendant    in 
reference    to    such  nev/-  matter,    he    was   required   to    set    foth   the 
discovery   v/hichhe   deisred.       inde^-    the  modern   syste:n  of  pi  3ading 
thas  pMrp    se    is    ace ':Ynpli siiec)    by  the    complainant    amending  his   bij  1 
and   asse    ting   such  new  matte    ,    and   re   uiring   the    defendant,    if 
necessary,    to    file    an  amende"   ansA-er-. 

If  when    the    bil  lis   joi;  ed    the    o  mplianant    is    awar^ 
that    the  defend -nt    v.lll    -ake    a  par-ticular    defense,    he    should 
meet    such   defense    in  the    "ha.'ging  part   of   the   bill    and    th's 
avoid  the   necessity  of   am.ending  his   bill. 


X^/I  ZquiTY      PL'.ADl^'a      A'"?    PP.AOTICE  94 


The    studsnt   nrast    bea>-   in  mind  th?t    \vhil:i   the   rspli cat- 
ion puts   in   iss'je    the    truth  of  all    the    avecments   made    in  the 
answer,    that    if   s  ix  h  ave-.  nii^nt ':    ar  ?    true    and  the    complainant 
has   an  ansv/er  thereto,    vfhich  is   a  sood    defanse,    he   cannot   make 

that    defense   unless    it    is   averred. 

Upon  t  h3   replication   bein,';;    filefi,    the   cause    is   at 
issue,    and    the   next    step    is   for   the    coi:-ip  lain  ant    and   defe-^dant 
to  take    such  proof    as   is  necessary  to    sustain    the  contention 
on    the   pai.'t    of    each. 

Ivlich.     rule    12 

But    before    any  proofs    a^'e   taken   it    is   impo-.t'snt    that 
each  party    should    detei-'mine  hOw  much  of  his   case   has   been  estab- 
lished   by    the   pjeading;    v/hat    facts   have    be  on   adrrit    ed,    and  what 
has   been   denied. 

Admissions    are    eitV^e;  , 

I -Upon  the   record,    or, 
I —By   agreement    between    the   parties. 


I    -    Am.IISSIO:-    UPO:'   TT-E    r^ECORD. 

These  may  be, 

l-Constructive ;    si;ich  statem.;nt   of   facts    as    the   parties 
are    c  oriclusively  presumed   to   h^.ve   adniit':ed  under    the   fonns  of 
pleading,    and, 

2-Actuai;    such  state-mnt    of    facts    as   arj    actually 
set    out   in  the   pleadings. 

\'!e   have    seen  th?t   if   tViedifendant   puts    in  a  plea    to 
the    bill,    he    thereby  admits   the   t  .^uth  of  all   mati:ers   well   pleade-i 
by  the    complainant,    and     not    traversed   by   the   plea.      In   such  a 

case    the    fscts    set    forth   in   the    bill    are    constructively    admit .e 
to   be   tcue,    and   t''.-e    corrplainant    is  not    riquirsd,    upon  filin/^  a 
replicati   n  to    the   p'ea,    to   intt'0d\ice    any  proof   to    sustain  his 
bill,    except    as    to    those   matters   specifically  denied  by    the    plaa. 
I'/hen  the    bill    char.'^es   a   fact    to    be    within   the   kn  wledge 
of    the    defendant,    or    which  from  the   whol  :    context    of   the   bill    can 
be   fairly  presumed   to   be   vnthin  his  know]e'"_~e,    and   the    answer   is 
silent    as    to   that    fact,    it    will   be    t  alien   as    admitted. 
McAllister   V   Olopten,     51   Miss.    257 
But   when  the   fact    is   not    cha'ged   as    wifnin  the   knowle   s$ 
of   the    defendant    and  can^^ot    be  presumed    to    be    so,    it    is  not    ad- 
mit led   by    tiTe    silence   of    the   answer. 

Hardy  V  Heard,  15  Ark.  184 
Moore  V  Locket t,  2  Bibb.  67-69 
Neil  V  Hagcthorp,  3  Bland  551 


X^/I  EO''ITV      P7T^.A'iI'"0      A^'^"i      P^AO'^'in'R  95 


In  such  a  case   if  an   answiv*  ujide-"  oath  has  not    bean 
aived   anci   the    plaintii'     desir^as   an  a  •  s'.ver   to    t'ne   CMa^c^   con- 
tained  in   th-3   bill   he   must   excipt    to    the   answer   for  insufficiency. 

Any  matei'ial   inattei-,    as   a   ..general   rule,    riha'-^e'^    inthe 
bill,    and  neither'    admitved   or   denied,    most    be   p    oved   by  the   com- 
plainant. 

Br^wn  V   Pearce ,    7  Wall.    20-3-211 

r-mith  ^'   cjt.T.ouis   '.■'.  L.    Co.,    2  Tin-^.    Chan.    599-Gn2 

'lardv/ick   V     asset    ,    25  Jach.    149 
If   ansv;er   upon  oath   nas   be  in  w:-vived,    all    admissions 
made    by   the    dafan^ant    in  his   answer  may   be  r^ad   in  evidence 
■-gainst    hirn,    withntt   inakinr    the   denials   contained   in    the  ans"/er 
e  vi de nc e    in  hi  s    f avo r . 

Pmith  V  Potter,    3  -i    .    432 
The    facts   positively  all  e:!;ed  in    the    bill   may  be    read 
in  evidence    by  the   defendant    as    admissions   r;:ade    by   the    complain- 
ant.     Tiie    G  omplainanat    as   a  matter   of   course    can-:Ot    read  his 
ovm  bill    as    evidence    in  his   favor,    unless    the    defendant,    has, 
by  his  answer,    admitted    ,    directly   or   by   implicatinn,    the    truth 
of    the   bill,    in   .vhich  case    the    complai    nat   may  rsad    such  po  ..-t  ion 
of  his    bill   a_s   the    admissions  of   the   defendant. 

McCxowan  V  Youn^,    2   FJtew.    27G 
Althou..":h   by  his   replication   the    complainant    denies    the 
truth  0  i'    the  whole   of    defendant's   ans'ver,    he    is  not   precluded 
from  usinrr   any  pa^t   of   it    ^.s    evidence    in  his    favor,    unles  ■    it    be 
the   answer  of   an  infant.         hen  the    complainant    -'eads    a  pai't   of 
defendant's   answer    as   an  adnussion  in  his    favor    ,    he   must   rad 
all   of   the    answer   bearin,^  on  that    subject    and    anyother   v.'ritin'^s 
referred   to;    he   must    t?J<e    the    admission  v/ith  all    the    lirit    tions 
and    explanations   with  which  it    is   ac®  mpanied.      -^hi  s   r^xle 
applies    to    all    admissions    and    to   all    testimonies. 

Bartlefe'.   V  '"rillard,    3   Russ,    149 

Beach  V  Haynes,    1   Tonn.     "'han.    569-571 
"      Gases  -^^q.    PI.  "c   Pr.    229 

Lady   Ormond   V  Hutchinson,    13   Des.    47-53 
It    is  not   necessary  that    the    defandant    should   in  his 
answer   make    a  positive    admission   in  order    to   have    it    read   in 
evidence   against   him;    it   will    be   sufficient    if  he    alleges,    th?.t 
he    believes,    or   i  s  informed   and   believes   it    to    be   true;    unles?^ 
it    is   accomp'nied  bysome    statement   which  pravents    itsx  being 
considere"    as   an  admissio.i. 

Potter-   y  Potter,    1   Des      Sen.    274 

'iil]s  V  :;GKinney,    3   S-  sw  F^q.    4:.5 

Jackson  V  Or-lander,    2  ''.^   •'.    465 


X\'I  EQUITY  PLEADI'^G    A'TD    PRACTICE.  96 


V/hen  an  ans-ze--   under   oath  has  not    bern  waived    and   there 
is   no   rule    to    the    contrary,    so   much  of   the   ans^ver   as   is   responsive 
to   the    disc-oviry   sought    by  the    bill   ;r.ay  be   read  in  evidence    by 
the    cfefendant.       And   ■«- er  e    rhe    a]i  gations   in  the    billhave    been 
positively  denied   in   the    answer   the   acomplainant    v/ill    not    be 
entitled   to    a    decree,    based  upon   SMch  alle.^ations,    ^Jinless    they 
are    supported    by    t\YO    witnesses,    or   by  one    witness  "vvith   co-operat- 
in>3;   circumstances   or    docijunentary   evidence    alone. 

'^rt    V  Ten  Eyck.    2  Johns   Chan.    52-92 
Panton  V  TelTt,    22   13  1.367 
Oould   v   Gould   3    ■^tory    516    -    540 
Under    the  present   I.'iciiisan  rules   it    will    be   r  ? ne 'nbe re d , 
an  anmir  londer   oath  never  has    the    force   of  evidence    except    as 
to    admissions. 

Mich.,    rules    10   a 
The    ris!^t    of    the    defendant    to  have   his   answei-    tkien  in 
evidence    is   co-exrensive   ivith  his   oblifjation  to    answer.       * 
Balisdell    V   Bo-ver's,    40   Vt .    12G 
And    tl-fi   complainanat    is  n   t   pe .'mi tied    to   impeach  the 
character   of    the    defendant    for    truth   and  veracity.      ire   has  made 
him  his    witness. 

Vandgrift,    V   -ferbjct,    3    C^..    Orreen  450-469 
Chambers   V  Y/ar^.^en,    15   111.     318-521 
■"rhe  n  the  answer   is   responsive    to   the    bill    it    is   evidence 
in  the    case    and  is    conclusive   uponthe    defendant    and    also   upon 
the   plaintiff  unless  he   overcomes   it    with  the    count  arevidence   of 
tTO    witnesses   or    testimony   eqmvalent    to    that   of   two   witnes^es. 
Gomstock    V  ^e^con,    45   Ferl.     rep.     650 
Bell    V  Farmers   Nat ' 1   Bk. ,    131  P.    -t.    313 
Seitz   V  I'.Titchell,    94   U.  -,     530 
The    ans'7     under  oath  is   not    evidence   which  must    be 
overcome    by   two   v/itnes'^es   inthe    foil   win/;   cases: 

1-Tnen   it   contains   alJe^at.ons,    n^t    resp-^nsive    to   any*^ 
thing   in  the    bill   upon  which  the    defendant   has   bean  interrogated, 
but    in  opposition  to   or   in  avoidance   of   the   plaintiff's  case, 
such  all  ec3.t ions    ai'-e  not    evidence,    they   are   matters  of   defense 
and  must    be    established    by   the    defendant.      If  mate^-ial,    the 
p   aintiff  may  consider    them  as   admissions  ma   e    by  the    defendant. 

Seitz  V,    Mitchell    94   U.S.    580 
Roberts   V   Seligman    ,    78   II]    120 
Ha-.    V   Carpenter,    38  Mich.    402 
It    is  not    always   easy  to   cietermine    whether   a  particular 
allegation  in  the    defendant's   answer   is  new  matter,    or   is  matter 


X\'-I  EOUITY      PL^ADTi^a      A.MD      PRACTICE  97 


responsive    t'"'    the    bill.      Tt   has    been   said,    that    if    the   pa:'"ticular 
allegation   can   be  omit    ed    i'rom  the   answer,    and    the    complainant's 
interrogatories   will    still    be   fully   answered,    it    is  ne'.v  matter, 
but    if,    when   stricken  out,    the   ans:/ers   could   be    excepted  to    for 
any   insufficiency,    that    it    is   responsive. 

Bellows   V   Stone,    18  .':I,H.    465 
2-''Tnen   the   m.atters   contained   in  the    ansv;ers   do  not 
counterdict    the    allegations  of    the    bill    and  make  them  im  prob-ble, 
or  if    the   matters  contained   in  the    answer    are   absurd    and   co'iintra- 
dictory      -      in   either    case    they  are   not    evidence. 

Stephens   V  post,    12   N,.T.E.    403 

Adams   V  Adams,    21   Wall.    185 
3-If    the   ans'ver   is   not   positive   and    d'-irect    in  its 
(fenials   or  explanations   it    is   not    evidence. 

Morse   V  Hill,    136  Mass.    60 

Lyon   V  Hunt,    11    Ala,    296 
4-'>'rhe  n  the   matcer   is   stated  upon   information  and   belief, 
it    is  not    evidence, 

Pierson  V  Ryson,    _5   ".J.E.    196 

To'.vne   V  Neham,    3  -r^ai^e   545, 
5- If    the   matter   is    stated  positively,    and  from,  the 
situation  of    the   parties   and   the    circumstances,    it    is    apparent 
that    the   facts    are   not    witliin  the  personal  knowledge  oft  he    d- 

f  endant ,    it   has  no    greater    weight    than  it    would  have,    if 
stated    to    be  on   information  and    belief-. 

Lawrence    V  Lav/rence    21   M.  ".E.    317 

Fryrear   V  Lav/rence    5   Gillman   325 
6-If    the   ans'/er   is    discedited   in  part    it   has  the   sariie 
effect    as    when   the    testimony  of   a   witness   is   shown   to   be    false 
in  part. 

Forsyth  V  Clark,    3  Wendell    637 

Young  V  Hopkins,    6   T,  R^    Mon.     18 
And  while    the    cokiplainant   m.ay  not    impeach  the    defend- 
ant   because   he    is   his   ovm  witness,    he   may  show   that   he   has  made 
admissions  which  are    inconsistent    with  his   answer.      us   may 
contradict   him. 

Brown  V   Bulkley,    14   N.J.'^.o    294 

Petty  V   Taylor,    5   Dana    598 

Millet'    V   Robins,    12  "'is.    319 
7~^JJhen  matters    are  presiomably  within   the  kni^'V.'lege   of 
the    defendant,    and    are   in     he    bill   charged   to    be  wit  hin  his 
knowledge,    and    the   answer  professes   ignorance,    the  allegation  of 
the  bill    as   a    rule,    are   held    to    be    admitted. 

M  ad  V  Day,    54   Miss.     58 

Barlow  V   Q,uarrier,    16     V/.  Va.    108 


X\'I  EQUITY      VLF.A^l"'}      A'TD      P^IACTICE.  98 


If,    however,    a  mere    al]e^?ition  in  the    bill   is    either 
admitted  or  denied   in   the    answa-:',    it   must    be   proved    by   the    com- 
plainant. 

PtIos   V   RandoJ'h,    1..      I]'.    197 
8-A  denial  of  a   legal    conclusion  is   not    as   a  matter   of 
course   evidence   of   tl-ie    la^v. 

Gainer  V  Russ,    20   ?la.    157 
It    is   said  tlrat    the   answer  must    be   overcome   by  testi- 
mony  equivalent    to    tv.D    witnes   es.      This    does  not   mean   thp.  t    the 
defendant's    testimony  has    the    sar^.e   v.'eif^ht    as    that   of    tvra    witness- 
es.     The   complainant   must    establish  the   essential   allegations 
m.ade    in  his  bill.      The    biardJn  of  proof   is  upon  hifa.      If  he    calls 
for   an  ansv/er  under   oath    and  thus  makes    the   defendant   his  o^jvn 
witnes;^    and  his    testimony   is    adve    se   he   must    no   neutralize    s'xh 
testimony  and   then  establish  his  bill    by  additional   evidence. 
It    requires   one    vdtness    to   put    the   complai'"'.ant    in  the   p.^sition  he 
occupies   before    the    defendant's    ansv.fer   and  another  t  o  prove    the 
trijth  of  his   bill. 

IJor.-ison  V   Stuart,    24   111.    24 

Veile   V  Hopp,    104  U.  ^.    441 

Veile   "   Bodgett,    49   Vtr.    270 


1 1  "ADMISSIONS    BY  AORElJlM^./TT. 

These    ai-e    admissions  made    by   the   ^larties   tf)   prevent 
delay   and    save    expense.       It    is    the  practice    in   this   stat-3,    and 
undoubtedly   in   other    states,    to   put    such  admissions   in   the    form 
of    a  written   stipiklation.       such  stipulati'n  is    entitled   in   the 
cause,    and   usually  proce    d-    as    f'^llov/s: 


TITLE 

In  this  cause  it  is  hereby  stimulated  by  and  bet'A^een  said 
parties ; 

1st ,  that ,  &c. 

2nd,  that,  &c. 

Finally,    that    the   facts  hereby    and  herein   set    forth  shall 
be   considered  by   the    court   upon  the  hearing  of   said    cause    as 
adii-iissions  m.ade    therein  by   said  parties,    and  may  be   read  as   evi- 
dence  upon   t  iTe    hearinp;   of   said    cause. 

The    st  ipul    at  ion  is    signed  by   the    solic  iters   for    complain- 
ant   and    defendant    and   is    filed  with   the   other   proof. 

— 0--0--0--0--0--0--0-- 


X^/II  EQUITY      PLEADlrTG      A:td      PRACTICE  99 

CHAPTER        7VII 
oOo 

TAKIfT^   Tn^TIMOlTY 

Formerly   all    testimony   in     Cliarvce-y  w:s    taken  upon 
intei-rojatories    before    an   examiner,    and  neiths^*  Yjsrty    to    the    suit 
was  permitted   to    be   presjnt    in  person  or   by  counsel.      "or  was 
either   party    entitled  to    a  co  y  of   tlie    infeerrocatories  prepared 
by  the   other   Tor  his   witnes-es.      As   vra   have   sein,    the   bill    did 
not    set    forths    the    evidence    tending    to   establish  tVie    case   made 
by  the    bill,    but   mei-ely   the    f^cts   which  such  evidence    would  tend 
to  establish  when  introduced.      Each  party   r'lrew  up    the    int er-'Ogator- 
ies    for  his   own  witnesses    and   the  witnesses    were    secretly  examined 
by  the    examiner   and   no   pa^'t   of    t^e    te -.tinony     was    divuJge'A   to 
eitiiei'   side.      Eich  party    v;as   however,    entitled    to    be    fu  nished 
with  a  list   of  his   opponent's   witnesses    that   he  inisht   examine   them 
iipon  corss-inter ''ogatori  es,    if  he    dJsir^d,    but    since   he   neither 
knew   what    the   direct    inter  -og'-^tcri  es    v^-er;,    noc    '.rrw  they  had   been 
answered,    such   cross    e  xammation  was  not   o:iiy  unsatisfactory, 
but    quite    likely   to    do   his    cause   more   harm  than  good.      Full 
directioiis    wera    given   as    to   how   the    exaininers    were    to  rroceid. 
Th.e    witness    was   not    pe^-mitted    to    se      the    inter   ogatories   he    v/as 
to    answer;      each  one    was   read  over   to   him.  and  he    was   req-'jired   to 
answer   it    in  full    before   the    next    was   read.      After    the    testimony 
was  taken  it    was  filed  in  court    and  then  published,    i.e.,    open  for 
inspection,    and   each  side    v/as    fu.rnished  with  copies,    and  thus   after 
the    cause   was    ready   for  hearing,    the    coiorisel   for   the   first    time 
learned  what    evidence   had   been  introduced. 

Ca rJ.  e  1 '  s   Chan .    P  r .    CJiap .  20 
This    system  was   cumbrous,    unsatisf act' ry,    often  ■unfair 
and  fell  into   merited     disrepate.      Tr.e    r-ules   for    taking  proof 
were    from  time    to   time  modified,    until   at    the  present    time, 
testimony   is   taken   with   the    same   publicity    and   with  little 
more    formality    than  proofs    ar  i    ta:en  in  a   law    court.      In   thds 
state,    under    the   statute    either  party  may  have,    by  giving   trie 
other   notice    within   tan  days   after   a   cause    is    at    issue,    all    the 
witnesses   examine      in  open   court. 

Mich.    Sec.    1013  3 
The    'supreme   court    is   empowered  by   the   statute    to 
regulate    the    taking  of    testimony   in  Chancery,    and  in  pursuance 
of   such  p^vrers,    it   has    a  dopted   certain  rules   v/hich  provide   h?'v, 
v/hen  a   cause    is   at    issue,    if  neither  parity  ha-    obtained    the    right 
of   examination  of    \>'itnes   es   in  open  court,    the    testimony   shall   be 
ta-ken. 

Mich,    rule    14 


WIT  EQUITY      PLEADI.-'Pt      A."D      P.IAGTIOE  100 


Brown  V  Brcwn,    22  .■■ic;:-!.    242 
Parti-3S  may    stip^ilatj    to    t-ka   p.r    ■  f s   b;fora    a  ITotary 
Public,    and    this   is   frequsntly   dona   v/l-ien  there    is    a  Notary  who 
is   a   St  anographer    and   the   circ\-iit    court    cojTUTiissioner   is   ni^t. 
But    in   tne   absence    of   a   stipul-tion  the  proofs  ar-^    t?ken  before 
a   circuit    couft    c  onu^.iss  inner   at    the  time    and  plac3    designated, 
the  party  appears    with  his    witnesses    and  proceeds    to    examine    them 
orally.       If    the   opposite  pari.y   is  present    and  does   not   object, 
the    testimony  !nay  be    taken  in  a  narrative    form  ornitdng    the 
que s t  in '3 s    as k ed ,    but    if  objection   is  made    to    t ha t    c o \xr s e  ,    t h  5 
circuit    court    corrruission  ; r  writes   dornn  each  inter  •o.'ratory    at 
length,    followed  by  the   answer    as   given  by    the    v;  tness-      oho\ad 
tlTe   opposite   at'Orn^y  object    to   any  question    for   any   reason, 
f»r   inst'ince,    that    it   is   leading,    or   ir   elevant,    the   c  amai  ssioner 
."rites    do\m  the    -bjection   but    do3s  not   pass  upon   it.      After  he 
has   t^.ken  down   the   objection  he    W!"ites   out    the   as     er   of  the 
witness   in  trie    language  of    the   w  itness,      Tf  objection  is  riade  , 
the    court    regards    such  testimony    as   taken   subject    to   the   object- 
ion,   which  is    considered    and  ruled  uponat    the   he'rin^.      Although 
the    commissi  •::er   cannot   pass  upon  objections  made    to    testimony, 
it    would   seem  that   he   may  exercise    some   discretion   in  the   fist 
instance    in   regard    to    t   king   arovm   scandalous  m.atter,    or   testimony 
that   the   -vitness   is  privelaged   from  giving. 

Stcr    s  V   Scougale,    43  rich.    383 

Re  a  Y  Re  a,    53  lach,    40 
In  nearly   ev        instance,    hov/eve-,    it    is    the   better 
practice    for    the    canmissioner   to  take    down   all   the    testimony 
offered,    together    wit  h    the   objections  made    to    it,    and  leave 
tlie    admissibility  of    the    testimony   to    the  circuit    and    supreme:- 
court.      The    suprjm.s      court   have   held  that    it    is  not    the   proper 
practice,    for   the   cirauit   even,    to   expunge   testim/nies   th?t    in 
its   judgm.ent    is   inadmissible,    but    tc  allcv;  it    to    stand,    so    that 
in  case   of  an   appeal  to    the    supr;n«    court,    tha. t    court   m.ay  be    in 
the   position   to    consider    and  pass  upon   its   admass ibility. 
The    aipr   me   court    sitting  in  Gliancery    ,    is   not    a  co^vrt    of   errors, 
but    an  appelate   court,    and   it   hears    the    cause    de   nove ,    and 
must    therefore  pass   upon  all    questions  of   the  admi  ssibility    wl-u  ch 
were    bef-^re    the   lower   coui-t. 

Bilz   V   ^ilz,    57   Mich.    116 

Brown  V   Brwvm,    22  Llich.    242 

CO  ID  ins   V  Jackson,    53  J'li  ch,    40 

Hulett   V   Shaw,    9   Mich.    346 


X^;il  EQUITY      PLEA,ni-TT      AND      PP^AOT^ICE.  lOl 


If   any   doc^jinents    are   introd  'ced   in  evidence    before    the 
comrniss  i"  "er,    he    receives    them  and  r.iarkes   them  as   ekhibits, 
nur.iberins   them  consecutively.      ^Vhen    the   time   has   expired    for 
taking  proofs,    the    c  omriussione'.'   files    the   testimony   then  by  him 
in  the    cause;    tms   it    is  published. 

Mich,    rule   14 
The    statute   provides    that    the    counsel   of    the  respective 
parties  may  be   present    at    such  examination,    and    that    the   witness- 
es may  be    examined    and   c."os- -examined  orally,    and    that    the 
testimony    so   t    ken  sliall    be   reduced    to  writing    and    subscribed 
by    the  v/itnes~.es,    and  file-Un   the    court  where  the    cause    is 
pending. 

H.  ^.    Par's    6 '339    -    Go46 
'"hen  a  deed  or   other   instrum.ent    in  writing  which  is 
duly   acknowledged  or  pr- ved,    in  such  mann  r   as    to    auth'^rixe    it 
1 0   be  read   in  evidence,    is    stated   in   the   bill,    such  deed  or 
instrument,    may  be    read  upon   the  hearing  of    the    cause,    unless 
the    defendant   has   in  his   answer    ■'lenied   the    due    execution  of   the 
deed,    or    the   existence   of   the   instrujnent ;    but    documents    whichare 
not   of    themselves   evidence,    witlxsut    further  proof,    shall  not    be 
read  on  the  hearing  unless    they  have   been  made   exhibits   before 
the   c  ommissi'n. 

J.'.ich.    rule   56 

Bate  he  lor   V  Me  Is  on,    Walk.    Chan.    449 

Jerome   V   Seymour   Har.    Chan.    2^5  5 

Sweet  land  V   Swe    tland,    3  rich.    482 
The   metho  ■    of  taking   testimony   in  the    U.S.    Court    is 
r  ;gulated   by   rules    o7,    68,    and   59,    which   provide    tliat    the 

testimony  of    witiiesses  may   be    taken  upon  direct    and   cross 
int  er-ogatori  es   or   or=illy,    before    an  ecaminer.      "lien  it    i'fe   taJ:en 
orally,    the    court   may,    on  motion  of   either  party,    as-ign    a  time 
within  which  the   complainant    shall    ta. ke  his  evidence,    and   the 
time    thereafter  within  which   the   defendant    sahll   take   his. 
The    rui  s  prescrube    that    the  testimony   in  a  cuase    shall    be 
t    ?ken  witlnin   three   months   aft    er    the    cause    is    at    issue,    ujiless 
further    tine    is   given  by   the   judge,    or   court,    upon  cause    siiown, 

VJhen  a  witnes      is   infirm  or    about    to   depart   out    of    the 
country,    or   is    the    sole    witness   to    a  material   fact,    liis   testimoji 
may   be   taken  at    any    time    after    the   bill    is    filed  de    bene   es  ;e, 
upon   leave    granted. 

U.  S.    rule    70 


X\riT  EQUITY     RLEADlNa      AIT^      PRACTIGB  102 


"TEARir^T   OF  THE    CAUSE. 

vrhan    the   proofs    ai^e    closed   and   the    cai-ise    is  ready   for 
he-^rlns,    it   may  be   noticed  for  heai-ir.g   by   either  party,    and 
causes    are   entitled    to   be  heard   in  this    st-te    in   the   order   in 
which  the   replication   to    the    answer  was    filed. 

Midi,     rule   I't 
Upon   the   hearing   the    complainant   has    the   opening   and 
closing.      As   a  rule,    t 'le   judge,    before    the  hearing  on  the  merits 
corn.iences,    has    the   counsel   for  the  complainant    state   in  his   o^vn 
language,    the   purpose    for  which  the   bill   v;as    filed,    and  its 
principal   allegations  of      fact,    and  he    then  requests   the    defendant 
to    state    the   defense   na  de    in   the   ansv/er.      t-raving    thJS  made 
himself  familiar   with   tlie  matters   in  is^^ue,    he   next   proceeds   to 
ascertain   what    facts    are  admitted,    and    about   v^luch  ther  ;    is   no 
controversy,    and  vHaaX    fects    are    in  dispute.      If  only  a  part    'f 
the    facts   of   the    case    are    in  dispute,    he    can   find  the    reading  of 
the    testimony   bearing  upon  these    questions. 

In  reading    the    testimony   to    the  court,    the   complain- 
ant   reads    the   direct    testimony  given   by  his   own  witnesses,    and 
the    defendant    reads   the    cross-examination.      ^-'hen    the    defendant's 
testimony  is   reached,    the    defendant's   counsel   rjads   the   direct 
and    the    complainant's    cross  examination.      At    the   close   of    tine 
hearing   the    court  may   decide    the    case,    or  hold  it   londer   advisement, 
and  render  his   decisionat    some    future    date.      Causes    are    fre- 
quently heard  out   of   turn,    and    at    charabers   by   arrangement   made 
between  the  court    and  counsel.      In   siich    a   case    the  cause    is  former- 
ly  submi    led   to  the    court   in  term,    and  the    argument   na  de   afterwards 
before    the  court.      In  thismanner   it    ap-ears  upon  the   record  that 
all   the   proceedings   were   had   in  court,    and  all    appearances  of  irreg- 
ularity are    avoided. 

If    there    is    any  good  reason  on  account   of    the  nature   of 
the    testimony,    a  cause    'ivill   be   heard   in  private,    and   the   public 
will   be   excluded.      The    court   may   direct    that    the    cause    shall    be 
heard  in  private    at    the    request   of    counsel,    or  on  its   own  motion. 

Matter  of  Lord  Portsmount,    Cooper,    Rep    .    106 

Ogle   V   Brondling,    2   Russ.    5:   :.!y.     688 
An  objection  to  the   bill    based  on  want   of  proper  parties 
may  be   made    at    the  he:--ring,    but    if    the    defect    can   be    cured    by 
amendment   and    servict5    be  had  upon  the  new  parties,    the    court 
will,    upon  terms,    allow   the    cause   wto    stand  over    that    tine   proper 
parties  may  be    added. 

Jones  V  Jones,    3  Atk.    110 

Palmer  V  Rich,    12  Mich.    414 


XVII  EQ;JITY   PLEADI^TPt   A*^D   FRAITICE.  103 


The   objection,    however,    mvist    come   from  the   defendant, 
as   the    complainajit    cannot   postpone    the   cause   without   his   consent, 
unless    the    canplainant    was   ignorant   of    the  persons  whose   claim 
will   be   affedted    by   tlie    decree, 

Inness  V  Jackon,    16   Ves.    356 

Thomas   V  Raines,'   35  I'ich  155   -    165 
If    the   objection  of  want   of  parties  has    be   n  maie    by 
the  defendant    in  his   answer   and  the    complainant   has  nef;;lected   to 
amend  his   bill    in   that   particular,    the    ®  urt   may  in  its   discret- 
ion refuse    to    allow    the    bill   to   stand  ov-jr   and  dismiss   the   bill. 

Van  Spps   V  Dan  Deusen,    4   Paige   64 

Bank  V  Seat  on,    1   Peters   229 

Stoy  V  Livingston,    13  Pete^-s,    359 

U.S.    rule    52 
v/hen  upon  the  hearing   it    is   discovered    that    the   proofs 
are    defective    in  some   forrrial  matter,    the   court    will,-    if  a  reason- 
able   excuse    is  given  for  the  omission  allow   the   cause   to   stand 
over   for    the  purpose   of    supplying   such  defects. 

1   Barb   Chan.    Pr.    322-   32   3 

U.  S.    rule    53 


DISMISSING    THE   BILL   AT    THE  HEARING. 

When  pleadings    are    defective,    or  when  through   some 
informality  in  the    bill  the   co^oi't    cannot    give    the    complainant 
relief,    or  where   from  som.eother    cause    the    bill   is    dismissed 
without    the   court's  passing  upon  the  merits,    and   it    appears   that 
the    canplainant  may  be  entitled  to    some    relief,    it    will   be   dis- 
missed  without   prejudice. 

Story  Eq.  Pi.   Par   456-793 

\Vilson  V  Egleston,    27  Mich.    257 
But    if   a  bill  is  dismissed  by  the    court   upon  the 
hearing  absolutely,    such  dismissal  niay  be  pleaded   in  bar    to   a  ne  w 
bill  filed   for   the    same   cause   of    action;      And  a  bill   cannot    be 
dismissed  without   prejudice   when  a  new  bill  must    cover  the 
same   ground. 

Crozier  V  Acre,  7  Paige  137 

Gale    V  Gould,    4C   Mich.     515 
A  bill  is   somfetimes   dismissed  and   the   canplainant 
given   leave    to    bring  an   action  fet    law.  The    courtmay  make    an 

order   retaining   the    bill   for   a   certain  period  with  liberty  to 
the   complainant   to  proceed    at    law,    conditioned,   that   if  he   fils 


w 


XVII  EQUITY      PI"A"^T"^'       '^"^      PRftOTIC^i  104 


to   do    so,    that    thi    bill    bi   dismissed   absolutely. 

1   Barb.    Ohan.    ?</    324,    325 
In  t}-as    state    the   court   may    at    the   hear  in,'?  upon  plead- 
ings  and  proofs   call   upon  dither  party   and      any  "vitness    to   testify 
before   t>ie    court    orally, 

IvUch.      rule    15 

Hamilton  v  ''amilton   37  rich.    002 

PEIGl'^D    IS^.IJES. 

It    sometimes   happens   that    the    testimony   is    so   con- 
flicting and  unsatisfactory,    thi?t    iv.e   court   or    the   parties  may 
desire    that    a  particular   qi;e    stion  of   fact    be   found  by   a  jury. 
An  isaue  made   for    tii at  pui'pose    is   called    a  fei.f^ned  issue. 

3  Black,    cases  4  52 
The    court    approves    the  fraime   of    tlT3    issue   and  it    is 
tried   substantially  as    a   suit    at    law. 

3   Barb.    Clnan.    Pr.    484 

Milk   V  Morse,    39   111.    5S4-583 

Russell   V  Paine,    45   111.    350 

Wood  V  Wood,    2   Paige,    109 

Dunn  V  D-onn,    11   J/ich,    235 

Brink   V.    Morton,    2   r^ole    (la.)    411 

Hall   V  ^or^n,    6   Cola    (la)    433 


— •0--0--O--0--O--0  —  o- 


X\'III  EQUITY      PLEADINCt      A?TD   PRACTICE.  105 


CHAPTER        XVIII 


cOo 


DECRE^.S 


A  decree    is   a    sentence   of   a   cou^-t    of  chancery   determin- 
ing  the   ri-rhts   of    the  parties    to   the    suit. 

Decrees  are    of  two   kinds,    Interlocutory  and  Final. 

I  NT  [SPJiO  C  UT  0  R  Y     DEC  REE  S . 

An  interlocutory   decree    is   a  decree   nadJ   dioring  the 
pendency  of  the    cause   tn   facilitate    t:ie    taking  of  proofs,    or   to 
protect    the    rights   of    the   parties,    or   to   aid   the   court    in  arriv- 
ing  at    a  correct    concrasion  in  regard  to   scfiie    disputed    fact,    but 
such  decree  must   not   be    a  final   determination  of   the  rights   of 
the   parties   in  wliole   or  in  part. 

FINAL  DECREES. 

A  final   decree    is  one  that   disposes  of    the   whole   or 
some   part   of  the    case   on   the  merits   and  resefves  no   question  for 
the  further   judgment   of   the   court   thereon. 

Crosby  V  Buchanan,    23  vrall.  ,    420 

Lewi--  V  Carnpau,    14  Mich.    458-460 

Winthrop  V  Meeker,    109  U.S.    ISO 

Cases   Eq.    P1.&   Pr.    258 
It    is    sometimes   exceedingly   dif   icult    to    determine 
whether   a  particular   decree    is   an  int  ^rlocvtory,    or,    a   final 
decree.      The    distinction  is   an  important   one,    since   the  right    to 
appeal   from  a  decree    is  a    st-tutory  right    and  must    be    strictly 
followed,    and  the    statute   usually  restricts    the  right   of   appeal   to 
final   decrees.      It  may  be    said  that   any  decree   which  finally 
disposes   of   the   rights   of    the   parties  upon   t  >«   merits   of   any 
branch  of  the    controversy   is    final,    but    that    if    the  merits 
are  not   passed  upon  and  the  order   is  made  simply  to  take 

an  additional   step    towards   a   final  determination  upon  the   merits, 
it    is  interlocutory  ,    provided    the   rights   of   the   parties  remain 
in  statu  quo,    for   any   decree    \vhich    '  divests   a  party  of  a 

pre-existing  legal  rig^t    is    final. 


XVIII  "  EQUITY      PLEADIMCt      A>TD      PRACTICS  106 


Barry  V  rsri-gs,    22  Mich.    201 

Tawas   etc.,    R.R.    V.    Losco   Ct.    44  Mich.    489 

Jenison  Oh.    Pr.    Chap.    18 

Bank   V  ^'hitney,    121   U.S.    284 

Cases   Eq.    Pi.    &   Pr.    257 


SETVLIITG   DECRE:];S. 

The   party   in  whose    favor  t  lie   judgment   of   the    court    is 
made  makes    a  draft   of    such  a   decree   as  he   deems  he   is  entitled 
to  under    the   decision.      He    serves  upon  the  opposite   solicitor 
a  copy  of   tiiis   draft,    with  not  ice   of   tine   time    and  place  he    will 
aPT^ly  to  the   court    to   have   it   set    led.      If   the  draft    is   satis- 
factory to   the    solicitor  upon  whom  service   is  made,    he  usually 
indicates,    by  endorse, emt   ^im  the   draft,    his    consent    to  have    the 
decree    settled  in  that    form.      If  it    is  not    satisfactory  he   may 
propose   amendments   and   apr'Qs^   before    the   court,    and  after    the 
parties    are   heard,    the  court    settles   and   signs    the  decree.      The 
decree   is   then  countersigned  by    the  register   and  entered  in  the 
journal   at    length. 

The    decre;;   should  in  apt    terms   set    forth  clearly    and 
methodically  the  judgment   of   the   court.      If   the    defendant    is 
required  to   do,    or    to  refrain   from   doing,    sane   act,    it    should   be 
distinctly  set    forth,    and  if   the   defend3nt    is   required  to  per- 
form some    act    the    time   within  which  it    is   to   be  performed  and  the 
manner  of  performance    should  be   made  plain. 


FORM  OF   DECREE 

The  formal  parts   of  a   decree   are*. 

1-Date    and  title, 

2-Recitals, 

3-Ordering  part;    and   to  thi?   is   sometimes   added, 

4-Declaratory  part. 
At    first    the    decree   on  its   face    set    forth  the  pleadings 
and   the  evi  dance,    but   iisually,    at    the  present   time,    the   decree 
recites  merely  the   sxijstance   of   the  pleadings   and  the   facts  upon 
which  it    is   founded,    and  in  the   United   States   Court  not    even 
that    is    done.      Rule   86  provides  that   no  part   of   tlie    bill,    answer 
or  other  pleadings  or    report    of    the  master,    or  other  prior 
proceedings   shall  be   recited  in  a  decree. 

U.S.    Rule    86 

Dexter  V  Arnold,    5  Mason,    303,    311 

Bartlett   V  Fifield,    45  N,H,    82-33 
It   is    still    the  practice    in  some   of  the    states,    however, 
to    set    foth  the    evidence   in  substance    in  the    deere;^. 


X^;iII  EQUITY   PLEADIMG   AND   PRACTICE  107 


Walker  V  Carey,  53  111.  470 

Moss.  V.  T-cCall,  75  111.  190 

Hillaary  V  Thompson,  11  W.  "a.  113 

Allsn  V   Blunt,    1    Blatch.    C. C.    480 
In    the  mandatory  part   of    the    decree    great    care    siiould 
be    taken    to  meet    th^    case    disclosed  and    seci^re    the    rif3hts   of 
wach  of    the   parties.      The      decre^.   must    be    consistent    with 
itselr.      But    the   court   may  witl-LOut    contradiction  pass  a    separate, 
a  reciprocal,    a  direct    or   an  inverted  decree    to   meet    the   nature 
of    the    case, 

Lingon  Y  Henderson,    1    Bland.    275 

Hodges   V  Mil  liken,    1   Bland.    507 

Ov/ens  V,    Case,    1   Bland.    404 

Elliott    V  Pell,    1  Paige,    263 


RECTIFYING   DEGRE?.S. 

Y./hen  a  mistake   or    clerical   error  has    be^n  made    in  a 
decree,    it   may  be    corrected   by    the   court   upon  motion  or  petition, 
made    aft:;,     entry  and   before   enrollment. 

Bates  V  Gar.-ison,    Har.    Ch.    221 

U.  ^0    Rules    85 

Giant   powder   po,    V  Cal.    Powder   Co.,    57   ?ed. 

Rep.    197. 
qam.e    case   -   Cases   Eq.    Pl.    ^     Pr.    262 
The   party  making   application  to  have    a  decree    corrected 
must    shDw    that    hfe   has   been  injured  by  t  he    error  or  mistake. 

Russell   V  Waite,    Walk.    Ch.'  31 
Insurance    co.    V  Wl-iittqnipre/  12  ?.Uch.427 
York   V   Ingham   Ct. Judge,    57   Mich.    421 
Hart   V  Lindaay,    W^Hc.    Ch.    72 


ENROLLMENT    OF   DECREES 

At   comr^on  law     a  decree    did   not   become    a  final  record 
of    the  court    until   it   was   enrolled.      It   must    be   enrolled    before 
a  deed  can  be   executed  on  a   sale   u:ider    a  dedree   and   before    an 
execution  can  issue    to   enforee   performance. 

Minthorne   V.    Thomas,    2  Paige (202   )    102 

Taylor  V  Gladwin,    40  Mich.    233 

Mickle   V  Maxford,    42  Mich.    304 

Law   V  Mills,    61  Mich.    35 

Long   V  Long,    59   Mich.    296 


Tnil  EQUITY      PLE'V^II^Ct      .\:TD      PRACTICE  108 

The    f?ecree    is    enrolled   in   the   following   manier: 
The    rygister   of    the    court    in  which   the    decree    is   entsred,    atiaclTes 
together    the  bill,    r,   eadin^iS   and  saoh  other  papers   as   the  general 
rules    direct,    together   v/ith  the    taxed   bill   of   costs   t!-erein, 
and    aniiexes   t:V3  rjto   a    fa  r   engrosses   copy  of    the    decretal   order, 
sii";ned    by   the  circuit    Judge    and   coijntar signed    by    the  register 
v/ho   entered   the    same.      The    register      then  annexes   to    the  papers 
so    attached   togethei-   his   certificate,    i-mde--   the   seal  of   the   court, 
wherein  he    certifies   accord  ng   to    the    fact,    the    time   when   the 
papers    were    attached   together,    for    the  purpose   of    enrollment 
and   tlie   names  of    the   parties   at    whose    instance    the   same 
was  done. 

Schwab  V  Mabley,  47  Mich.  512 

T-ong  V  Long,  59  Mich.  296 

Loud  V  Winchest  .r  52  rach.  174 

Low  V  ?;ills,  61  Mich.  65 

Micjle   V  Maxfield,    42  Mich.    304 

Ilich.    R.    24 
The    decree    is  not    enrolled    by  the  register  on  his   own 
motion.      He   must    be  r'^quested    by  one  of    the    solicitors   to   enroll 
the    decree    and  this    request    is  made    in  wx-iting  and  is   attached 
to    the    decree   with  the    other  records   at    the    time    it    is  enrolled. 

Mich.    Ch-     R.    24 

Miller    statutes   Par's.    463   -   464 
V.Tnen  a   decree    is    'enrolled    that   ]iarticiLlar   suit   has   been 
finally  disposed  of,    ended,    and  cannot    be    disturbed  upon  motion 
or  petition.      It    can  only  be   opened  when   a  bill  of    review  filed 
upon   leave   granted,    and    the  power   of    the    court    to  grant    leave    is 
discretionary, 

Maynard  V  Pereault,    30   Mich.    106 

Vaiighn  V.    Black,    65   Mich.    215 

Clark   V  Cir.    Judge.    40   Mich.    166 

Dexter  V.    Arnold,,    5  Mason   303 

Same    case,    Cases  Eq.    Pl.fc  Pr.    277 

Hill  V   Philps,    101   Fed,    Rep.    650 

Ditto,    Cases  Eq.    Pi.    &  Pr.    297 


IVHO    ARE   BOUND   BY   THE    DECREE. 

As   a  general   rule,    all   who    are  parties   or  privies   to   a 
decree    are   bound  by   it,    and  no   one   who   is   not    a  party,    or   is 
not    represented  by  or   in  privy  with  a  party  to   the    suit    is   bound. 


XVIII  EqiTITY      PLF.A^lMa      kV.T)      PRACTICE.  109 


Bro'.'.'n  V  Wynkoop,    2   Blackf.    2Z>^ 
nom.    V  Cambridge,    4  ?iass.    627 
Mallow  V  Hinde,    1'^  Wlieat.    193 
Richter   V  J-rorne,    123   U.  ^.    233 
Atki-son  V  Flanif^an,    70  Mich.    639 
German   seminary  V  Sasnjer,    6G   Mich.    249 


EMPORCEIvlF-NT    OF   DECREES. 

It    is  one   of   the   maxims   of   equity   that    it    acts   in  perso- 
nam.   "The    strictest   primai-y  decree    is   this    coT-irt,"    '=:aid  Lord 
Chancellor  Hardwicke,    ""^s   in  personam,    and  althnuph  this   court 
cannot    issue    execution  in  rem,    e.g.    by  elef^ic,    still   I    can   enforce 
the  judgment    of    the    coi,irt>    which  is   in  personam  by  process    in 
personam,    e.j.,    by  attachment   of    the   person  -vh  an   the   person  is 
Tvithin   the   j  •or isdiction,    and   also   by   sequestration,      so    far  as 
there    are   goods    and    lands   of   the    defendant   within  the    jurisd- 
iction of   the    court,    until   the   defendant    do    comply  with  the 
order  or   judgment    of    the   court,    which  is   against    the  defendant 
personally,    to   do  or   cause   to    be   done,    or    to  abstain  from  doing 
some   act.  " 

Penn.    V  Lord  Baltimore,    1  Ves.    385 

Therefore   uhless    the  power   of    the    court   has   been  en- 
larged  by    the    statute,    the  pe'-formance   of  an  order  or    a  decree   of 
the   court    is    enforced  by  what    is   termed  process   for   contem.pt. 
The   process   is   based  upon  the   theory  that    the   defendant   haviiag 
having    been  coirirranded  to    do,    or    to  refrain  from.doing  a  particular 
act,    is,    by  his   neglect    to   do,    or    by  doing   that   particular   act, 
in  contempt    of   the    court,    and  for   such  c^'tem.pt   has  merited 
punishment.      The    law  coitrts   act   upon  an  entirely   different 
theory.      They  do   not    regard    the    defendant,    who    fails   to  satisfy 
a  judgment   rendered  against   him,    as   a  contempt   of   the    court, 
but    issue   process   to    satisfy    the   plaintiff's    demand,    when  it 
may  be    satisfied,    by   seizure    and    sale   of    tlie    defendant's  prop 
erty,    or   the   imprisonment   of    the    body  of    the    defendant. 

Contempt   of    the   court    in  equity   is   technically  disre- 
garding the   command  of   the    court   evidenced  and  authneticated  by 
its  great    seal,    and    consequently  before   a  party   can  be    said  to 
have    incurred  such  contempt,    he  moist    be   personally   served  with 
the  mandate   of   the    court   under   seal»    and   the  mere    service   of 
a  copy  of   the   decree,    or   order  of    the   court,    without   the   writ 
is  not   sufficient. 


X\^TII  EQUITY      PLEADING      AMD      PRACTICE.  110 


VIRIT    OP    EXECUTION. 

The   writ    is   called  a  writ   of  execution,    ancl  it    recites 
the   order  or  decree,    or    that  part   of   it    v,hich  the    defendant   is  to 
obey.      At    first    it   was   the   practice   to    insert    the   entire    decree, 
but    afterwards,    by  order  of   t?;e    court,    if  the   decree  was   for  the 
payment   of  money   the    substance   of   that   pact    directin.f;    the    pay- 
ment  of  money  was   inserted. 

Wien   the   order  or   decre-?   directs    the  defendant    to      do 
a  particular   act,    which  Vie   nef^lects   to   do,    the   writ   of   exec'^tion 
commands  him  to    do  the    act   within  a  specified   time,    and   if   it    is 
not    done   within  the    tiijie    limited,    the  party  is  then  in  contempt. 

Generally  the  writ   of  execution  must   be    served  upon 
the   party  himself  in  order    to   brin^;:;  him  into    contempt. 

This   is    done    by  handin:3  him  a  copy   and   showing  him  the 
original  under    the    seal   of   tlis    court.      But   when  pe  -sonal   service 
cannot   be   had  upon  a  party  owing  to  his  misconduct,      substituted 
service   v/ill   be   directed.      A  party  will   not    be   permitted  to   put 
the   c -urt    at   defiance. 

Tyson  V  V/ard,    1  Dickens,    160 
Ryder  V  Kidc'.er,    12  Ves,    202 
Ditvo      -    Case-Eqo    Pl,&  Pr.    267 
DeManneville   V  DeManneville ,    12  Ves.    203 


VmiT    OF   ATTAG'^TTENT 

The   party  having   be  ?n  duly   served  with  a  writ   of   exe- 
cution,   if  he    neglect    to   obey   the  mandate,    and   that   fact    is    brought 
to   the   at- ention  of   the    court    by  affadavit,    a  writ   of  attachment 
is   isoued,    upon  which  the  party   is    arrested  and  brought   before    the 
court,    unless  he    can  purge  himself  of  the    contempt,    he   is   by 
order  of   the    coiirt   directed  to   comply  with   the  mandate    instanter 
or    stand  commited  to   jail. 

2  Dan'l   Ch.    Pr.    Sec.    7 
The   statute  has,    however,    very  materially  enlarged   the 
powers   of    the  court,    and  in  this    state   courts   of  equity  may 
enforce    the  performance   of   any    decree   or  oberiience   thereto,    by 
execution  against    the  body  of    the  party,    against    whom  six;h  decree 
shall  have   been  made,    or   by  execution  against    the  goods   and 
chattels,    and  in  default    thereof,    the   lands   and  tenements   of 
such  party, 

H.  S.    Par   O'^SS 

Mic|:le     V  Iviaxfield,    42  Mich.    304 


X\'"III  'SQ.UITY      PLEADINCJ      AJTD      PRACTICE  111 


IMTERLOOUTORY  PROCEEDINGS 

The   proce  idinf^s   we   hav3    already  noticed   ar?    cha  usual   and 
regular  proceeding's   had   in  evei-y   caus  ;    in   chancery.      There   are 
certain   interlocutory  proceedin.^iS   wo   which  we  v/ill   nov/  call   your 
at    ention,    none   of   which  may  be   h^d   in  a  ^iven   cause,    but    sane 
of   wi'dch   are   usually   taken  at    some    stage   in  the  progress  of   every 
cause,    and   which  aro   of   great   practical   importance. 

An  interlocutory  ap^^lication  is    a  r-jquest   made   to    the 
court    for   it;-   aid   and    assistance    in   scane  matter  arising   in   the 
cause,    either    to   furtlier    the  proceedings     or    to  protect   the 
rights   of   seme  of  the  parties   to    the   suit.      These    applications 
are   made   either  orally,    when  they  are    called  motions,    or   in 
writing,    when  they  are    called  designated  petitions. 

There    is   no    inflexible    and   certain  rule   given  by  which 
you  can  determine   whether  a  p ar t i c ■'ol ar  ■  i  application 

shall   be  made    by  motion  or   by  petition.      As  a  general   rule,    when 
the  applicat  ionis   based  upon  a   long  or   intricate    sttement   of 
facts,    it    should   be  made    by  petition  and  not    by  motion.      Other- 
wise   the   application  may  be  made   by  motion. 

Shipbrooke   V  Hir-chbrook,    13  Ves.    387   -    393 

Shaft    V  Phoenix   Ins.    Go.    u7  i;.  Y.    544   -    547 

Bei-gan  V  Jones,    4  "et,    371 

Jones  V.  roberts,  12  Qim.  189 

Anon  ?  Madd.  229 

Skinner  V   Sweit,    Coop.,    55 
A  motion  may  be  made    by  or   on  behalf  of  any  of  the 
parties   to    the    suit,    who   is   n'-t    in   contempt.      If  a  party  is 
in  c<»itempt,    he    cannot    be   hear   ixntil   he   purges   himself  of  his 
cont  empt, 

Johnson  V  Pinney,    Paige    64'3 

Rogers  V  Patterson,    4   Paige,    450 
.  Lane  V  Ellzeg,    4  H.  cfc  I'..    504 


A  MOTION   IS  EITT-TER   OP    COURSE   OR   SPECIAL. 

A  motion  of    course    is  one   which   will    be  granted  upon  an 
ex  parte   application  and   witlxiut   hearing  the   other    side,    under 
some    standing  rule   or    the  known  practice   of    the    court.      It   re- 
quires no  notice    to  be   given  the  opposite  party  as  no   opposition 
will  be   allowed  to   it, 

Eyles   V  Ward,    Mos,    255 

Barbour   Ch. Pr   .    566 


X^/IIT  ^.QIJIVY      PLKADI^TP,      A?TD      PRACTICE  112 


Motions  of    course    aura   '.^n 'ler  stood   to    be    confined  to   orders 
which  ar^  entered  by   the    re^^ister,    at    the  reques".   of   the   party, 
v/ithout    any   ap"  lication    being  made    to    the    court. 
!.^ich.    Rule  15 
U.S.    Rule    5 
^ince    the  motion  is  made    orally  to    the    court,    the   only 
evidenci    that    such   application  w?s  made    i  •;   found   in  the  recital 
of    the  order  made    by    the  court,    th'-rt    "upon  motion  of   A.  3.    solicit- 
or  etc.  ,  " 

SPECIAL  MOTIONS. 

A    special  motion  is   one   widen  is  not   granted   by    the 
court    as    a  mat  c  er   of   course,    Isut   one  which  the   court   may,    in  its 
discretion,    after   cause    shown,    giant    or    refuse.      They   ari   m.ad^ 
either   ex  pai-te   or  upon  notice. 

There   i  s  no    clear    and   ^fiell    defined     rule   under  v^hich 
special   motions  may   be    classified   into    tl-ose   which  m.ay  be   made 
ex  parte    or  upon  notice.      You  must    in  a   r^reat   measure   rely  upon 
the    rules   of   t'ne    covirt    nvhich   state  iBually  whether  the   special 
motion  rerraires  notice   or  not.      If    the  r^ales    are    silent,    and 
the  parctice    is  uncertain,    the   safest    course    is  to  give  notice. 
Marshall    V  Mellinsh,    5   B=;av.    496 
I  shard  V  Caz^av^x,    1   Paige   39 
Hart   V  Small   4   Paige,    551 
U. S.    Rules   3-4 
•  Mibh.    Rule    15 

Ex  paxte  motions   are   made    for   a  vari  ejry   of  purposes   -- 
for  inst  ance  : 

For    an  orrler    that    an  absent    defendant   appear;    that    com- 
plainant's   bill   be  taken    as   conl';;ssed;    to    sh^vv   cause    why  injunct- 
ion should  not    issue;    to   enlarge   the   time    for  taking  testimony; 
for   time   to    answer;    for  appointment    of   a  guardian  ad   litem  etc. 

sometimes   upon  an  ex  parte  motion  an  order   is   entered 
th'it    a  pa.-ticular      ct    is    to  be    done   unless   t  i^   opposite   party 
show    cause    to   the   contrary   within  a   specified   time.      Sue  h  an 
order    is   called   eind   order  nisi.  Af t  }r    the    time    limited  for 

showing    cause,    or    doing    the   act    required.,    the  order  nisi    is 
made   absolute. 

Dan.    Ch.    Pi-a.     1594 

All   motions  must    be    supported   by  affadavit   or  other 
pr'^-f    sufficient    to  m.ake    a  case    for   the   int3rference   of   the  court. 

"V/hen   the  motion   is   not    of   course    and   cannot    be   made 
ex  parte,    notice  must    be    given   in   writing   to    the   opposite   party. 


XVIII  EQ.UITY   PLEADIUG    MD    PRACTICE.  113 


This   being  simply  a  notice    th-it    an  oral  motion  will    be  made    to 
the    court,    the   form  of    the  notice    becomes   important.       It   must    be 
entitled   in   the   court    and    cause    and    directed   to   the    solicitor  of 
the   oprosite    party   and    signed   by   the   party   giving  notice.       In 
the    ba^  y  of      the   notice    the  particular   order  or    direction  of 
the  court    which  will   be    asked   for  must    be    set    out    clearly   and 
distinctly,    and    the  party  must    be   informed  of    the   grounds   upon 
which  the    application   is  made,    an'^    consequently  notice   must    be 
accompanied  with  copies   of  all   affadavits   ana   other  proofs   not   on 
file    in  the    cause,    and  previously  known   to    the   othar    solicitor, 
which  will   be   read   upon   the  he'riring   of   the  motion.      The    time    and 
place   of  hearing  must    be    given    also.      This  part   of    the   notice 
usually  concludes   with   the  words,    "or    as   so-n  thereafter  as 
co^unsel  can  be   heard.  " 

Isnai'd   \''  Gazeaux,    1   Paige   39 
Brown  V   Ricketts,    2  Johns   Ch.    425 
Jackson  V.    Stiles,    1   Oow.    134,    135  n 

The   time    and  man- er   of   service    is  fixed   by    the  rules. 
After    the  notice   has   been    served   the   party  making    the   service 
should  prepare    felx  an  affadavit    setting   forth   the    time    and   r.-^anner 
of    se   vice    to    be   use:!   in  case    the   opposite  party  dDes  not    appear 
to   op;  ose    the    action. 

It    is    the   pnactice   of    the    court   when  several  motions 
are    to   be  made,    to    first    hear   ex  parte   motions   and   those    which  are 
not    op]^ised.      Vlhen  a  motion  is   opposed   it    is    the   usual   practice 
for    the   party  making   the  motion,    to   first    read   the   notice    and   the 
affadavits,    if   any,    in   its    support,    and   then  for   the   opposing 

party   to   read   any  opposing   affadavits,    after    v/hich    the  moving 
party  opens   and    closes    the    argujnent.      The    decision  of    the   court 
may  be  rendered   at    the   hearing  of   the   motion  may   be   taken  under 
advisement    and   the    verdict    randered  at   a   subsequent    sit    ing  of 
the    court. 

The    co-rt    will    not   upon  motion  make    an  order   which  will 
decide    the  principal  point    in   the    case,    except    upon  consent    of   all 
the    ;':arties   affected    by   it.       For   instance,    if   the    bill   is    filed 
to    enforce   the    specific    performance   of   a  contract,    and   the    only 
q^Jestion  in  dispute    is    the    title   of    the   vendor,    the   contract    bing 
admitted   by  the    answer,    the   court    v/ill   upon  motion  direct    a 
reference    to   a  master   to    enquire    into    the    title,    but    the    court 
will   not   upon  motion   before    the   hearing   inquire    into   any  other 
objection. 

Like   V  Beresford,    3   Bro.    C.  C.    366 

Moss.    V.    Matthews,    3  Ves.    279 

— 0--0--0--0--0--0--0 


XIX  EQUITY      PLEADl^n      Pim      PRACTIGIi;.  114 


AFTER        XIX 


•--oOo 


PETITIO^^-^. 

Petitions    ar-;    entitled   in  the    coiirt    in   cause    and   add- 
ressed  in   the    same   nisinr.er   as    a   bill. 

A  petition   is   not    the   prober  proceeding  unless   all    the 
parties    interested   in   the    subjedt   rnatier   have   been  or  may  be 
brought    before    the  ©urt.  Therefore    when   it    is  necessary   to    issue 
processes   to    bring   interested  parties   before    the    court    a   bill   and 
not    a   petition   should   be    filed. 

Ledyard's   App.    51  r.lich.    623 
Bank   V.    Byles,    67  I'ich.    297 
The   petition   should   briefly   and  c]ea.  ly    set    forth  the 
particulars   of   the   case    and    conclude   with  praying   the    court    to 
grant    the    order    desired    "or   such  other  and   further   relief 
as   may   be    agre    able    to  equity   and  good  conscience."      The   petition 
must    be    signed    and    sworn  to  by   the   petitioner   and   also    signed 
by  the    counsel. 

Matter  of   Chrisite,    5   Paiga,    242 
When   a  person  not    a  party   to   the    original   bill   has   an 
interest    by  way  of   title,    lien   or  otherwise    in   the  property  wliich 
forms    the    subject   matter  of    the    suit,    and    such  interrst    is    liable 
to    be    affedted   by  the  proceedings,    he  may  by  petition  apply   to 
the   court    for  leave    to  intervene    f o r  t  he   protection  of  his 
rights,    and   such  leave    will   be    granted  when  the   cause   exists. 

V/hen   leave    is   granted  a  party  to    intervene    upon  petition 
to   the  court,    he   m";.st    within   the   time    given  him  by  the   court    file 
his  petition   in  the    cause    setting   forth  his    rights   and  praying 
for   the   r.ilief   sought,    and   give   notice   of    the   filing   thereof 
to    the  otlier   parties   to   the    cause. 

Freeman  V  Howe,    24  'iow.    450 
Stewart   \''  Durham,    115   U.S.    61 
Gumbel   V   Pitkin,    124   U.S.     131-143 
Petitions    are   n    ticed,    and  heard   in  the   same   manner  as 
motions. 


ORDERS. 
Orders    are  either   by  common,  special,    or    by  consent. 


XIX  EQUITY   PLTZADH-G    AI^D    PRACTICE.  115 


A  common  order   is   one    that    th-?   party   is    entitled   to    as   a 
matter   of  course    and   is  made    without    notice    to   the   opp'-^site 
party. 

A   special  order   is   one   ma"e    by   the   court   upon   special 
application,    either   ex  parte   or   upon  n   tice. 

An  order   by   consent    is   one   made   upon   stipulation  of  the 
parties   or    solicitors. 

All   comm.on  orders   and   orders   by   'Consent    of    the   parties, 
may  be    entered   in   the   common  order   book    in  the   register's   office, 
at    the  peril   of   the   party   takin:;^   s^jich   order.      The    day  on  v.'hich  the 
order   is  enteced  must   be   noted   in  the    entry.      All    special   orders 
made    by   th:-  court   must    be   entered   in  the  record  of   the  proceedings 
of    the   court.      vrhen  an  orde^-    is    entere'i    by  consent,    the    consent 
must    b?    in  writin/r    signed  by  the  pai'ties   or    their    solicitors 
and   filed   in   the   cause. 

^^am:rond  V  Place,    Har.    Ch.    438 
Crone   ".    ^ngell,    14  Mich.    359 
Mich,    rules   24 
Ordei's   for  injunctions,    and   all   other    special  orders, 
nust    be    entered    with   the   register  before    process   issues. 
Hoffman  V  Treadv/ell,    5   Paige   82 
Skinner  V  Dayton,    2  Johns   Gh   .    2?6 


NUIIC    PRO    TITJC    ORDERS 

It    frequently  happens   that    the   entry  of   a  common  order 
is  not   made    at    the  proper    time.      In   such  a   case,    if  no    great 
length  of    time   has    intervened,    a  motion  of   course   may   be   made    to 
the    court    to   enter    the  order   nunc   pro    t^jind;    but    after   a  consider- 
able   length  of   time,    there   must    be    notice    of    the  motion  given. 
Williamson  V  Henshaw,    1   nick.    129 

I'Teither  party   can  obtain  any   benefit    from   a  decision 
of    the   court   until   the   order    thereon  is   dra^/n  up   and  perfected. 
\\'hen  the  order   granted   is    special   in   its  provisions,    the  party   in 
whose    favor   it    is   granted   should   submit    a    copy  to   the    adverse 
party  that   he   may  submit    amendments   thereto    if}  he    desires.      The 
draft    and   amendments    ar  -    then  given  to  the   register   that    the 
order  may   be    setLled   by  him  and  entered.       If    the  register   is   in 
doubt   as   to    the    decision  of   the   court,    he    is,    in   such  a  case,    to 
ap'-ly  to  the   court    to   settle    the  order.      It    is   the  practice    in 

this    state   to  have    the   court    settle    sill   orders  over   which  there 


XIX  EQ,UITY      PLEADI.'TCr      A:TD      PRACT^ICS  Hi 


is   any  controversy. 

V/hitney  V  Belden,    4   Paige    140 
Eai-l   iffFincal   V   Blake,    3  Mo.i'y   50 


SERVICE  OF  ORDERS. 

Not    all  orcl":rs  nei  '    be    se-ved,    and   wh^thec   or    lot    an 
order  must    be    served   depends   usually  upon   the    form  of   the    ord^r. 
'^Tecial   orders   obtained  ex  parte,    usually  provide    that    the   act 
designated   shall    be   p.jrformed   by   the   op-  o site    j-arty  within  the 
time    specified,    after    seivice    of   the    order.       But   where    a   special 
ordei'    is  obtained  upon  notice    the  order  usually  provides   that    the 
act    shall    be  performe'"   witlun  the    time   designated    after   entry  of 
the   order.      The   reason  for    this    distinction  is   that    the   first 
instance    the   opposite   party  has  no   pe^-sonal  knov;ledge   of   the 
order   ujitil  he    is   n   tified,    and    in   the    latter   case   he    has    such 
notice,    having  had  notice   of    the   mortion  for    the    order. 

But    in    ~11   cases   as    we   have    seem,    Virhere    it    is    intended 
to    bring   the    party   into    contempt    for  not    complying  with   the 
order,    notice   must    be    served  upon  him  personally.      The    service 
in   such  case    is   trade    in   the   same   manner   as   notice    of   a  decres,    by 
delivering  him.  a   copy  of   the   order   and    at    the    same    time    showing 
him  a   certified   copy  of   the    original   order   under    the    seal   of 
the   court. 

Cooper   282 

Laton  V  Seaman,  9  Paige  609 

Young  V  Good  son,  2  Russ.  255 

V/hen   the  party   has   appeared   by   solicitor,    and   it 
is   not    desired   to   bring  him  itito   contempt,    service   of  notice, 
when  notice    is    neces-ary,    upon  the    solicitor   is  Sufficient. 

Stafford  V  Brown,    4   Paige   360-^^2 


ENFORCING   ORDERS. 

It    is    sometimes   provided   by    statute    that   orders   for 
the   payment    of  money  may  be   enforced   by  means   of  an  execution 
running   against    the  property   of    the   defendant.      At    common   law 
orders  w.^re,    ipx  general,    enforced   by  process  of    contempt.      Upon 
motion,    and  proof   that    an  order  had  be?n  personally    se-ved,    for 
the  payment   of   costs   for  instanse,    and   that    the  order  had  not   been 
obeyed,    attacliment    issued  and  the   defendant   was   coinmitted  to 


XI 7  'EQUITY      PI3ADI:'G      AI-ID      PRACTICE  117 


prison  f o  v«  a  co-^t.  =mpt. 

Dan'l   Ohr. ?.  1454 


IZODir-'YI'-'T    AND   .nll^CHA.irTlMG    ORDT^rs. 

It    IS    a  general    rule    that    every   order  made    in   the   prog- 
ress  of   a  cause,    may  I'or  cause    shonn,    be   m^difis""!    or   vacated   at 
any   time    before    the    final    disposition  of   the    suit. 

Ashe    V  Moore,    2   >,e".    383 

Fan'iin--'  V  Dunham,    '5    Johns   Ch.    35 

Isnad  V  Cazeaux,    1   Pai^s    ~^^ 
An  order   •."ill    nf">t    be   vacated,    hn-vevei',    except    to   -  ermit 
the   party   -^p-ilyin,;^   to    secure    right"   that    gre   meritorous.       If  he 
simply   desir  is   to    delay  a    cause,    Oi-   take   ddvantage  of    some    tech- 
nical  definse    or   objection,    the   co    rt    ivill   allow  the    order   to    stand 
althcu.-:h  the   party  has   excused  himself   from  all    faujt. 

Champlain  V  "ayor  of  :\Y.    3  r,air™e   575 

Townsend  V  To'vnsend,    2   naige   413 

^unt   Y  v/aliis,    6  l^-ige  371 


iJi 


IITJUNCTIO:^'^. 

It    is   very   frequently  neces--ary   for   a    court    of  equity 
to   restrain  a  p:rty   from  doing   some   rarti't-ular    act    in  orde-^*   tn 
prevent    irreparable    injury  to   another,    or    to   maint-oin   the    statu  quo 
pending   the   determination  of   the    legal   rights   of    the   parties   to 
the    subjedt   matter   in  litigati -n.      Tins   object    is  a- complish-  • 

ed  by  the    writ    of   injunction,    a  'vrit    o"   the   gre-.te  -t    importance 
and  of  very  frequent    use    in  this   country  during   the   past   half 
century.      We   can  do   no   m.or3    than  merely  indicate    the   existence 
and  purpose   of   tha    writ,    and   refer    tlie    student    to    the   exliaustive 
treatise   on    the    subject    by   Dr,    High. 

A  writ   of  injunction  is    a  judicial   process    acting   in 
personam  requiring   the   party   to   "v'-iom  it    is    dirjcted    to    do   or   to 
refrain  from  doing   .■^o.-ne    act    therein   specifically  described.      It 
is  used  both   for    the    enforcement   of    a  right    and   the   prevention  of 
a   'Arrong,    but    it   must    be    an  actual  right   or   a  positive   WKflr^nt  x 

v/rong,    and    the  wi  tJrihold  ing   of    the   right  or   the    doing   of    the    wrong 
must   work   a  positive    injury   to    the    person  complaining  or    the 
court    will  not    interefere. 

Mcr.onough  V  Gal]ov/ay,    7   Rob   La.    4'' 
Goodrich  V  Wo  ..re    2   Yina,    49 

Injtinctions    ai'e    either  mandatory,    com'^anding   something 
to   be    done,    or  preventive,    forbidriing   the    doing  of    something. 
A  mandatory   injunction  is    seldom  ist'ued   and   then   only  upon   the 
final  hearing. 


XIX  EOUITY      PL.7.ADlrCT      A:TD      PR/\CTIGE  118 


Robinson  V   Bryam,    1    Pro.  CO,     583 

Gale    V,    Ab'X)tt,       3   Jur.^^^.    937 

Worthincton  V.    Gre ^n,    1  Mo.    Ch.    97 

Rogers   V  Rai]x-oad,    5   C.E.    Green,    379 
■"ith  reference    to    their   duration  injunctions   are    either 
interlocutory  or   perpetual.       Interlocutory   injunctions    are    issiied 
at   any   time    during   the   i^rogres-    of    the   suit,    usually  at    the   filing 
of    the   bill,    to   continu-^   until    the    coming   in  of    the  ans    er,    or   t  o 
the   hearing,    or   until    the   fijrthet    ordev   of   t  h3    court.      A  perpetuxal 
injunction  is   never   granted  except    at    the    final  hearing   and  is 
usually  a  part   of   the    decre  ;. 

Chapman  V  Harrison  4   Bland,    336 
The   sole    object    of   an  interlocutory   injunction  is   to 
preserve    the  present    situation  of   the   parties,    and  therefore 
it    will   go  no    further   than  is   necessary  to   preserve    all   the 
rights   in  issue    between  them  in  statu  quo. 


coivU'^ON    mtj    special    iitjuitctions. 

A  common   injunction   is  one   that    issues    to    aid  the    ^ ourt 
in  granting   the    ultimate    r-:;lief   a  "'red,    v/iii    h  is    something  different 
from  the  injunction  itself,    while   a   special   injunction   is   issued 
to  prevent    irrepairable    injury  ?.nd   the  obtaining  of   which  is    thJ 
sole    or  principal   object    and  pirpose   of    the    suit. 

Purnell   V  Daniel,    8  Ired.    E  ;.    9 

Troy  V  Morman,    2  Jones   E|.    318 

Peterson  V  Matlhis,    3  jones   Sq.    31 
Special   injunctions    are   not   granted   in  the   united   states 
cohort   except   upon  notice    to   the   opposite  paoty,    and   they  con- 
tinue   in   force   until  the    next    term  of   the    court,    or  until  the 
further  order  of   the   court o 

U.S.    Rule    55 

Rev.    St.    Pai%    713-719-720 

Parker  V  Judges,  12  )W-ieat.     561 


^TKEN      MJ      INJUITCTION      BECOMES      OPERATI\'E. 

an  injunction  becomes   operative    from  the   time    the   party 
to   whom  it   is   directed  has    actual   notice.      It    is   not   necessary 
that   he    should   be    actually    served  with  the    writ,    and   therefore   it 
may  be    served  outside    the   jurisdiction  of   the   coi^rt. 

Ramsdale   V  Craighill,    9   Ohio    197 

Little   V  Price,    1  Md.    Ch.    182 


XIX  EQUITY      PLSADI:'G      AlID      PRACTICE.  119 

Milne   V  Van   BusJcerk,    9   Iowa    558 

Osborne   V  Ten-^ant,    14  Ves.    136 
A  perpetual    injunction  is  one    th?.t    is   issued  under   a 
final  decree,    or   an  interlocutory  injunction  which  is   made   per- 
petual by  the   final   decree.      By  its  tjrms   the    defendant    is   for- 
ever  inhibited   from  doing   certain  acts,    or  making   certain  specific 
claims   therein   set   forth,    which  would  be    contrary   to    eqmty   and 
good    conscience.      Such  an  injunction  will   issue   whenever   it    is 
necessary  to   protect   the  rights  of    the   complainant. 

Bushneai   V.    Hartford,    4   Johns   Gh.    301 

Caruthers   V  Hrrtsfi  ad,    3  Yerg.    356 

Kenson  V  Kensnn,    1   Bibb   134 
Injunctions   in  this    state  may  be   granted  by  a  c  ire -jit 
court    comiviissioner.    Jlicho    rule    21 

WRIT  OF  NE  EXEAT 

A  writ  of  ne  exeat  is  the  process  of  the  court  issuing 
under  its  seal  to  prevent  a  person  who  is  a  ya^'ty  to  a  suit  from 
leaving  the  jurisdiction  of  the  court.   It  is  resorted  to  for  the 
purpose  of  crmpelling  a  defendant  to  -^ive  bail  conditioned  that 
he  will  do  and  perform  the  decree  of  the  court. 

Gilbert  V  Colt,  H^pko  496 

De  Rivafinoli  V  Consetti,  4  -oaige  264 

Gleason  V  Bisby,  1  Clark  551 
The  statutes  of  the  ^mitad  states  provacie  that  when  a 
suit  in  equity  is  commenced,  and  satisfactory  proof  is  made  to  tlie 
circuit  court,  or  to  the  circuit  court  justice  or  judge,  that  the 
defendant  designs  quickly  to  depart  from  the  U.S.;  that  there  is 
due  from  him  a  certain  sum  or  capable  of  reduction  to  a  certainty; 
that  com^Dlainant  has  no  s;ifficient  legal  redress,  and  that  irrep- 
airable  injury  or  a  denial  of  justice  will  be  caused  complainant 
if  the  defendant  so  departs,  such  court  or  j  adge  may  order  the 
issuance  of  a  writ  ne  exeat,  upon  which  the  marshall  arc-ests  the 
defendant  and  keeps  him  in  ci^tody,  unless  he  gives  sedurity  to 
abide  the  order  and  decrss  of  the  court. 

Rev.  St.  Par.  717 

U.S.    Rule    21 
The    writ   may   be    applied   for   at    any   stage   of    the  proceed- 
ings,   after,    but    no   t    before^    the  filing  of  the   bill   of  complaint. 

Dunham  V  Jackson.,    1   Paige    629,    Gas.    Eq.  P1&  Pr.    303 
The   application  for  the   writ   may   be   made   ex  patte-      The 
•application  is  founded  upon   affadavit   or  petition,    and,    unlike 
the   writ   of   injunction,    it   need  not    be   prayed    fbr   inthe   bill.      The 
writ   may  be    allowed   by  the    same   officers  who    are    authorized   to 
allow  writs  of  injunction,    and   the  officer  making   the   allowance 


XIX  EQUITY      PLSA~I~T'-r      A!"D      PRACTICE  120 

diiects   in.  what    amount    the    de±';nrlant    sv^s?!]    f^iv?    bail. 

Gleason  V   Bsisby,    1   Clark    551 

McNaniara  V  ^wy  :  r,    7   ^ai.-s   239 

Denton  V  Danton,  1  Johns  Chan.  364  -  Oas.  Sq.  Pi.  303 

Portar   V   Spencir,    2  Jolins   Ch.    169, 

dit.o,         Gases   Eq.    Pl.i  Pi-.    304 
The   v/i'it    coin^iands   the    sheriff   to    h^^-ve   the    defendant 
pe'-sonal]y  to    cane   before   him   and  cive   bond   in   the  penal  sin  en- 
dorsecl   the  eon,    that   he  will    not   go,    or   attempt    to   50,    beyond   the 
jurisdiction  of  the    co  ;i't    --    at    conunon   law  b;yond    the    four   seas-- 
and   in  default    of  his  giving   such  bond  that   he    be    com.;  itted   to 
priso  i. 

Gilb   rt    V   Colt,    i   Ho]v  .     500 

Rice   V  Hr.le,    5   nush.    238 

I-Iich.    rule    17 

RECEIVERS. 

A  receiver    is    a  suitable  person   apr'Ointed    to    take    charge 
of  property  which  is   involved   in   the   suit,    when   for  any  reas- 

on,   the   OD  urt    regards    the  parties   to  the    s^jit   not    the   proper 
pers   ns   to   have    the  c\astody  or   managen-Ent    of    such  property.      The 
appointment    of    a  receitTer   is   discretionary  with  the   court.      ^'Tnen 
appointed  he    is   regarded    a-   an  of    ieer    acting  under    the  orders   of 
the   court.      The   pov/er   of   ap'' oi;-itment    is  usually  called   ir^.to    action 
either   to  prevent    fraud  or    save    the  property   in  litigation   from 
material  injury. 

In  re   receivers   (^rlobe    Ins.    Co.       6   paige    102 

Baker  V  Barkies,    42   113,    79 

Vorhill   V  Hynson,    26   Md,    85-92 

Mich,    rule    31 

U.S.    CO.    Rules,    8-9-11 
V/hen   the    application  for   a   receive."   is   'la-^e    during  the 
pendancy  ^f   the    suit    and  before    a  decree,    there   must   be    a   foundat- 
ion  laid   for   the    application  in  the    bill,    but    the    bill   ne  ?d  not 
cont'^.in  a  prayer   for    a  receiver.      The    application  is  made   upon 
petition  or  motio.a,    and  notice   which  must   be    served  upon  the 
opposite    party,    unles=;  he   has   absconded  or  has    concealed  hi    self 
to  avoid  the    se   vice. 

Dowling  V  Hudson,    14   Beav,    423,    424 

Pitcher  V.    Hilliar,    2   Dick.    530 

—  o — 0--0  —  o  —  0  —  O  —  0 


XX  EQUITY   PLRAnl'Tr   A!^D   PRACTICE.  121 

CHAPTER        XX 

oOo 


PRODUCTIOM  07   PAPERS. 

It    is    the   practice   of    ths    court    of   chancery   to   require 
the    defr3ndant    to   procure    any  papers   in  his  pos?;ession  relative 
to   the  mat    era   inquest  ion,    which   the    complainant    of   rl^ht    ought 
to   have    the   privBlage    of  examinaing.      It    is    the    complainant's 
privelage   to   apply   for    the  protection  of   such  papers    as   a  part    of 
his   general    right    of   cliscovery. 

War    ick  V  Queen's   r-ollege,    L.  R.    3  Eq.    083 

Ati'y  C-rsn,    V  Thompson,    3  Hare,    106 
V.n-ien  the   canpl?inant   has   bo-^ks,    papers   or   other   docu- 
ments  in  his   possession,    inate.-ial    for   the  defendant's   defense, 
the   defendant   was   required   at    c  onv  on  law  to   file    a  cross   bill,    by 
which  means   he   obtained   the    same    right    for   the   protection  of 
papers    as    the    com.plainant   had  under  his    billo 

Kelly  V  Eckford,    5   Paige,    548 

Ditto,    Cases   Eq.    P1.&  Pr.    307 

Denning  V  Smith,    3  Johns   ch.    409 
'.'/hen   a  bill    is   filed  for   the   purpose   of  obtaining  a 
partnership   accounting,    and   the   partnership   books   ar 5    in  the   hands 
of  one   of   the   partners.,    the  court   upon  application  will   direct 
such   bO'-ks   to  be   placed   in  the   hands   of  an  of  icer   for    the 
purpose   of  allowing   the    other  partner   to    examine    them. 

Kel]ey  V  Eckford,    5  paige   543 
To   obtain  an  order   for    the   protection  of  papers   or 
books,    application   is  made    to   the    qourt    by   special  motion  and 
the    bill   or   affidavit  made   to    sustain  the  motion,    must    shJw   that    fre 
production  of    the   papers   or   books   is  necessary   to   enable   the 
party  making   application   to  prosecute    or    defend  the    suit. 


ABATELniTT    AI-ID   REVIVOR 

Abatement    of   a   suit    in  eqmty   is    the   effect   produced   by 
the   happening  of    some    event   whereby  the   fiji'ther  progress   of  the 
cause    is   tempo r?.rily  or  pennanently   suspended. 
Hoxie   Vo    Carr,    1    Sumner  173 

The    abatement   may  be    due    to    some   event   whereby  the 
interest   of  one   of  the    ■  arties   becomes   extinguished,    for  instance, 


XX  EQUITY      PLEADlra      AMD      PRACTICE  122 


when  joint   tenants,    as   such,    are  parties      and  one   of  them  dies, 
in  such  a   case    the   abatement    is   said  to   be    as   to   a  party;    or^    the 
abate  Trent   may  be   due    to    the  transfsr  of    the  interest   of  one   of  the 
parties   to  a  third  parson,    for   instance,    when  upon  the    death  of 
of  one   of    the  pai'ties,    his    intere -t    is   vested   in  heirs  or  devisees, 
in  such  case   there    is    an  abatement    as   to  the   smt. 

Leg.'^ett  7  Dubois,    2  p-^-ige   211    -   212 

Ditto      Cases  Eq.    Pl.<'c  P.-o    309 
In  the  f  ir^t    instance    there    is   no   abatsiment    as   t  o  the 
surviving  x;3rties,    and   the   court    will   on  the  motion  of   either   of 
the   parties,    order    the   cause    to  proceed  bet■we^;3  such  survivors. 
But    in  the   other   case    there    is  no   lon'^er   the  pro^^er  persons 
before    the  court   against,    or   by  whom  proceedings   can  be   had  and 
the   suit   must    therefore   be   revived. 

Le-.-ett   V  Dubois,    2  paige,    211   -   213 
^■Jhen  there   is   an  abatement   of    the   suit    by  the    death  or 
ba.'ikruptcy,    for  instance,    of   the    complainant,    no    fUtther  proceed- 
ings  can  be   had,    as   a  general  rule.,    lontil   this   defect   has    been 
cured,    and  if   any  proceedings   are   had,    they  will  be    set   aside 
as   irregular. 

Insurance    Co.      V  Slee,    2  Paige    365 

Canhone   V  Vincent,    8   Sim,    277 
The   proceedings   are   merely   suspended   by   the   abatement 
and  those    already  had  in  the    cause   are   not    annulled  thereby.      If 
a  party  has   been  imprisoned  for  contempt,    abatement   of   the   svtit    . 
does  not   discharge  him  from  custody,    neither   is    a  receiver   dis- 
charged for    that   reason. 

Dan.    Gh.    Pr^    225 

1  Hogan  174 
And  ihe  court  will  sometime;  pecmit  necessary  proceed- 
ings to  be  h  d  pending  abatement.   Thus  ordSrs  will  be  made  for 
the  preservation  of  property,  and  proceedings  had  to  planish  a 
party  for  breach  of  an  injunction. 

Washington  Ins,  Co.  V  ?lee,  2  Paige  355,  363 

Hawley  V  Benneit,  4  ^aige,  163 


REVIVOR. 

jTi  many  of   the  states    the    statutes  provide   that    suits 
may  be  I'evived  on  petiti'ne      These    statutory  proceedings   are 
usTially  confined    to  cases  where    the    suit   abates   by  the    death  of 
a  party,    the   statute   substituting  a  petition  for   a  bill  of  revivor. 
^Vhen  the  abatement    is   one  that   can   be   remedied  under   the    statute, 
the   statutory  proceedings   are   usually  resorted  to  as   being    simpler 


XX  ■c-niTI'^v      ?T-".\rNi'^ri      A"'n      PRAO'i'TCE  123 


and  more   expiditious,    but   a  party  is  not   ^):-ohibit3d   from  rasort- 
inj  to   a   bill   of  revivor   ovin   in  those   cases   where    the   statute   has 
given  ample   relief   by  petition. 

The    statute    is  neces   a-'i^y   confined  to   those    cases   in 
which  there   can  be   no    le^al  controversy  with  reference   to  the   right 
of    the   party   to   revive    tVve    suit    in  his   favor,    or    a/T-:iinst    whom  it 
may  be   revived;    in  other     words,    to  tliose    cases  where,    at    coni'ion 
law,    an  abatement   could  be    remedied   by  a  bill   of  revivor.      It    is 
laid    down    as    a  rule    that    a   bill   of  revivor  whenever   by  death  of 

one   of  the   pai'ties   his    interest   vests   as   a  matter   of   law   in 
some   other  person,    so   that    the  only   question  for   the   court    to 
determine   is    the  q-.estion  whether  or  not    such  person  i  :^   the   one 
designated  by  the    law. 

Story  Eq.    PI.    Par,    364 

Freemantee   V  Xarkhous,    2  J.J.    :*arsh    (Ky)    303 

Boynton  V.    '^oynton,    1    'r-'oster  246 


ORIGINAL   BILL   IN   NAT" 'E    O;-'   BILL   OF   REVIVOR   AITD    SUPPLEM^.NT. 
But   when  the   party  against   whom  or   in  whose    behalf   the 
suit    is    soTUght    to   revive,    is   not    designated   by  the    statute    as   the 
pe-.'son  who   represents   the   original  party  to  the   bill,    but   his 
repres  !ntat ive   character   depends  upon   some    question  of    fact,    an 
original   bill    in  the  n^.ture   of  a   bill   of  revivor   and   supplement 
mixst    be   filed. 

Douglass   C    Sherman,    2  r>aige    358-360-301 

Monteith  V  Taylor,    9  Ves.    615 

Mendhom  V   Robinson,       1   Fy^  K.    217 
The   reasonfor    the   above i rules   is,    that   in  the    later 
class   of  cases,    the  title    depending  upon   a   question  of    fact,    it    is 
necessary    to  put    the    question  of  title    in  issue,    that    it   m.ay  be 
litigated.      Ifs    for   instance,    one   of   the   parties    to   a    suit    dies 
intestate,    the  interest   which  he   represented  goes  to      certain  per- 
sons  designated   by   the   statute,    th3  only  question   t  o  be    determined 
is    the   irTenty  of   the  heirs.      If,    on  the    other  hand,    such  person 
dies   intestate,    the  question  of   tine   validity  of    the  will   must    be 
determined   --  litigated. 


SUPPLEM51^TAL   BILLS. 

When  the   bill   becomes    defective    by    some   event   occoring 
after   it    is    filed  and  too    late  to   be    cured   by   amendment,    or  when   by 
an  event    s^obseque-t    to    the    filing  of   the   bill    a  new  interest    in  the 
matter   in  litigation  is   claimed   by   one   of   tlie   parties   to    the    suit, 


Xy  ^.nUITY      PLT^.A";!  'H       A"^      PRAOTTOE  124 


or  a  new  ^.o-ty   claims,    otherwisa    than  by  mere   operation  of   ]av, 
the   interest   w>;ich   belonged    to    sane' other  party  at    the   conTi'ience- 
rnent    oi'    the    suit,    a   sup-   'e.vientcl  bill    is   the  proper   r^rnecy  to 
C'iore    t;ie    dei'ecc. 

Jones   V  Jones. J    3    ttk.    110 

Dorrne-    V    "Ortescue,         Atk.    124-133 

^uir,phr;jys   V    'lynphrrys,    3   P.Wms.,    349 

Pelki^vrrton  V  !;;oss,    r.add   240,    46  3 

■'■'nirjht    V  i'atr.hews   1   "."dd.    5 '.  ■^-   304 

Usborn  V   J'aker,    2   '  add.    379-539 
It    is    I'ile-"^    on   leav;,    to    s^Tp'^ly   some   defect    In   the 
structure    of    the  ori-^inal  bill,    caused   by  the   hap^eninn;  oi"   sc^ie 
event    ai'te.-   the   filing   of   the    ori-inal    bill. 

Kennedy  V  Georgia   qt    .    Ek,    8  Ho^v.    U.  ^.    586 

"'in-  V  Albert,    2  '.'do    Gh.    42 
It    is   not    proper    to    file    a  supplemental   bill   to   put    in 
issue   new  matters   which  C5n  bi   added   to  the   bill    by  way  of  amend- 
ment.     Therefore,    if    ther?  hsa   been  no    change    in   the   parties   and 
the    bill    is   defective    from  the   c  ^rr.plainant   hatin'^  omit.ed   to  make 
certain  alle";ations,    through   ignorance   of    fact,    and  no  pro-fs 
have    be   n  taken,    the  complainant    should    ap'ly   i;o   the    co  rt    for 
leave    to    amend,    and  if   :ie   has   filed   a  replication,    to  withdraw 
his    replication. 

Dias   V  :,^e    le,    4   Paige,    259 

Cole  lough  V  Evans,    4    ■^ir-.    7o 

<^.t'-fford  V  ''owlett,    1   -oaige    200 

Ghandle-"  V  Pettit,    1    '^^aige    lo8 
If  pror^fs   have    be  ^n   taKen   he    ir.ust    in  th  ?.t   event    ask   leave 
to   file    a  supplemental   bill. 

Dias   V  I.'erle,    4    P':ig3,    259 
!''ot   all   matters,    iiowever,      hat    have    arisen  since    t  re 
corr  encement    of  the    suio    can  be   put    in   issue   even   by    a  supplenuatal 
bill.      If   the    ©mplainsnt   had  no    cause   of   action     hen   the   bill   was 
filed  he    cannot   cure    the    defect    by  put    ing   in   issue   matters   which 
have    since   occur'ed.       'le   will   not,    for  instance,    be  permit 'ed   to 
supp'^'rt    a   bad   title   held   by  him  at    the    tivie   th^    bill    was   filed, 
by   s  i4)sequently  acqmring   a  good  one    and    set   up    such    acqui'-ed  i-itle 
by  a   supplemental    bill. 

Tonkin  V  Lichb^/idge,    co-p.    .^o    43 

Davidson  V   f^'oley,    o   Bro.C.C.    598 

Pritchard  V.    Draper,    1   Russ.    &  ''ay.,    191 
The    rule    does   not,    however,    bar   a   complainant   who   had  a 
gO' d   i.ichoate    title,    froms'r   v;ing  by  a   supplemental   bill   that    such 
inchoate    title   has   beco-;e    vested   through  some    fr  rmal    act, 

?.'.ut    er  V   Chanvoe,    5   Russ.    42 

Sadie:'  V  Lovett,    1   Molloy,    162 


Xy  'Of^UIVY      PL:A'-I~'G      A'D      PPvAGTIOE.  125 


A  suppl  D' •mo  -l    bii:    can/-)0'.    be   file-"   v^itlinut    leave   nf  the 
co^.ut    f.  rs-    obo^inerl.      '''be   .Mcci-'n   .*:'0x'   f.n  orner    -rivioo-  t-^.  mis"!'^" 
ne  :;d  n-t    be   n.-ticJd,    how?v3r,    unless    an  injunccioi  is   rirayed  for 
in   t  Iv^    snp^le'-.'enta  ]    bil]. 

"ia-^-ir   V   Price,    P.      Pai-^a    333 

Lawrence  B  Do]  ton,  3  "ain;e  294 

Winn  ^'  Albert,  2  d.  "b.  42 


CR'-"^^  BILL 

Formerly   a  defend  ,nt    could   not    pr.y   i'or   any   relief   in  his 
answer,    eyc3pt    to  be   dismissed   by   the    court   with  his 

reasonable    costs   and   charn:es,    a-^d  th.erefore,    if  he    sourht    any 
other   relief,    he      m  Jst   do    so    by   a  bill    of  his   o   n,    filed   in  the 
same   cause    and     designated   a   cdos--    bill. 

Moi-gan  V  Tipton,    3  McLean,    339 

Cullom  V  Sr'vin,    4   Ala.    45^' 
Under   *;he   practice    in   this    state    and  in   some    other 
staces,    the   defendant    can,    in  his   ansvr.vr,    ask   for   affirmative 
relief,    th'.is   in  .^any   instances   doing   away  with   the    necessity  of   a 
cross   bill.      It    is    still,    however,    desirable,    and   in   some    cases 
neces-ac-y»      It    frequently  hap   ens   that    a  complete    decree    canoot 
be   made   under   the   ori-^i.ial    bill,    due    to    the   fact    that    the    coiji- 
flicting    'if-^hts   of    .he   defendants   are    not   pit    in   issue,    O'-   that 
some    of  the    defendants  a^  e    entitled   to    affirmative    relief,    and 
a  cross    bill   or    cross    bills   are  neces   ary    to   bring   the   vdiole 
matter   in  dispute    before    the   court.       In   such  a   case   it    becomes 
necessary  for  one   or     more   of    the   defendants   to    file   a  bill 
against    the   complainant,    and  if    the  are   neces    sary  parties, 
against   one  o  r  mo  re   of  the  defendaits. 

White  V  Euloid,    2   Paige    164 

Anglo-Egyptian   n.' .    L.  R.     1    Ch.    APP-     108 

Mich.    Rule    11 
A  cross    bill   is    regarded   as    a   defense   andthe  original 
and    cros?    bills  are    ®  nsidered    together   as   constituting  one 
suit. 

Field  V  c^chieffelin,   7  Johns  '^h.  249-252 

Ca  -twright    V   Glirk,    3   J'etc.    104 
Forme    ly  no   pe  'son   could  be   made    a  party  to    a   cross   bill 
who    ^vas   not   a   party  to   the    original   bill,    but    now   in  many  o  f  t  ve 
st;--tes   new  parties,    when  necessary,    may  be   thi?^   brought    in. 

Blodgett   V  Hobart,    18   Vt.    414 

■  Brandon  ?'fg   Co.    V  Prime,    14   Blatch.    371 

Kennedy  V  Kennedy,    66  111.    190 

Cobb  ''   Baxter,    1   Tenn.    Chan.    405 
As   to    the   proper   practice    in   this   sr.ate    under   rule    11, 


XX  EQUITY      PLEADI-  a      M?>      PRAGTICT^>  .        126 

which  permits   the    daf^ndant    to    ask    for   affirmative   relief   in  his 
answer   se.? : 

IlcGuire    V   .:.  CJud.^e,    59   Mich.    593 

'lark ley  V  Mack,    50   :ich.    591 

Coach   ''   C.  Judge,    97   Mich.    55?;    Cas.    Eq.PL.&   Pr.  314 
"'hen  an  answei- is   dravm  to   fulfill    t'-e   purposes   both  of 
an  ans     .r   end  a   cross    bill,    Z]\3  bet    at-   practice   would    seem  to    be 
to    dra'.v    t'^e   answer   fi.-st,    as   yu  would   do,    if   you  intended    to   file 
a  crost^    bill,    and  then  add   to   the   answer,    thus    dravm,    the    averments 
entitlinf^   the    defenda^^.t    to    af   irmative    relief,    ^lich   the    cross    bill 
if  drawn,    would  have    contained.      In  tliis  way   all    confusion   between 
the    answer   and   t  hi    cross    bi]l    are    avoided. 

The   proper   time    for  filing   a    cross   bill   is   at    the    time 
th3    ans -er   is  put    ir^^      If   it    is  not    then  filed  and  no    s'jfficient 
excuse    is  given  for   delay,    the  pr-' ceedings   in  the  original   suit 
will    not    be    stayed. 

Whit:-   V  Buloid,    2  Paige    164 

Josey  "•''  Rogers,    lb   '"-a,    473 

Irving   V  DeKay,    10   Paige    319 
The    cross   bill    should   be    confined   to    the   matcers    stated 
in  t  !•«    ■-original   bill    and  must    not    introduce   new   and  distinct 
matters  not    ei^braced   therein.       If   it    s'oould   it   would   be    an  original 
bill  as    to  such  matters.       It   must    p.ot    contcadict    the    alleg"^.tions 
made    by   the    defendant    in  his   answer    to    ti\3    bill,    and   it    is  proper, 
if  not   necessary,    that    the  answer   sliJuDd    set   out   all   the   allegatio- 
ns  contained   in   "he    bill. 

Harkley  V.    Mack,    60  Mich.    591 

Irving  V  DeKay,    10   Paige,    319,    322 

Hudson  V  Hudson,    3    Rand,     117 
The   original  bill   must    be   answered   before    the    defend-nt 
will   be  permitted   to   file    a  cross   bill. 

Ballard  V  Kennedy,    34   ?la.    483 
After   both  causes    are    ready   for    a  hearing  either   upon  the 
pleadings,    or  pleadings    and  proofs,     iither  pa^  ty  may  obtain  an 
order    ex  parte    to   have    b^th   causes   heard    togethe   . 

V/hite   V   Buloid,    2  Paige   164 

U.  <^.    Rule    72 

Mich.    RuJ  e    20 
If   the   original   bill    is   dismissed  it    does   not    cari'y  with 
It    the   cross    bill    if   the    cross   bi  J 1    sets  up   new  facts   and  prays 
for    affirmative    relief. 

Ballard  V.    Mennedy,    34   Fla.    483 

.Sowenstain  V  Rlidewell,    5   Dil.    325 

ditto.  Gas.    Eq,    Pl.t  Pr.    511 

0--0--0--0--0 — o — o — 


yxi 


EQUITY      PL-.ADI  Tr      A.''D      PRAOaCE 


127 


C    H   A   P    T   E    .^v 


X>'I 


oOo-- 


I'TT'^>RPLnAn'^,R. 


V/hen   a  percon   is    in  possession  ni'  a   specific    chattel,    ^i' 
a  definite    s\;mn  of  m  nay,    wbich    two   or  mors   persons   claim  adversely 
to   each  other,    but    in  the    sa-ne    ri'^'it,    o^'  privity  of   estate, 
he   may   exhibit    a   bill   of   interpleader   against    such  adverse 
claimants   and    thws   r    ]ieve   himself   from  the   liability   incident 
to   delivering   th^    article,    or    c^ie   money,    to    the    wronf?   claimant, 
by  compelling-   them  to    liti";ate    their   adverse   claims   between 
each  othei-  = 

Child  V.    -'ann  L.  ^o    2  ^.q.    80'3-0-8 
Eedell      Y   -^of.'man,    2   Paige   199 
'■"^reen  v  "umford,    4   Rcl.    313 
Kile   V   aoodrum,    87    111.    A-^".    462 
ditto,  Cas.     '^q.Pl.-'c   Pr.    315 

entitle    a  party    to   file    a   bill    of   inte ''pler-^er  he 
e    stake   holder,    Imviog;    hi^  ■:;=    If,    no   interest    in  the 


To 
must    be   a  me 


property   in  co  iti'ove  .'sy,    so   th-at  when    th3    court    decre:S   an  inter- 
plsade    ,    he   may  st  ?p   out    of   the   case    al  coeether. 

Lincoln  ^'   R= -t   1,    R.  R,    So.,    24   vt.    639 

Angell    V  Hadden,    15  Ves.    244 

Bowditch  V    Soltyk,    99   "ass,,    136 
Strictly   speakinr^,    the    complainant    does   not    ask    any 
relief  against    eiohei'  of    the   defendants,    but    simply   tha  aid  of   the 
CO  -rt    in  determining  to   whom  the   p- operty   of    right    belongs,    that 
he  may  deliver   it    to    such  rightful   person   and  ber^lieved  against 
the    claims   of   the   othec. 

Bedell  V  Hoffman,    2   Paige   199 

Badeau  V  Rogers,    2   Paige    209 

Lazin  V   Van    Saun,    2    "^reen   Ch.    325 
The  bill    ■^f   interpleader   present-    in  the  first    inst?nce 
the    right    of   the   complain  ?nt    to    be    relieved   f  -  om  litigation  in 
accordance   with  the  prayer   of   his   bill    that    T.he    defen"!ants  may  be 
required   to   interplead.      If  his    right    td   file    the   bill   is   put    in 
issue,    that   issue   must    be   first    disposed  of.      If   it   is    d<acided   in 
favor  of  the  defendants   the    bill   is   dismissed;    if   in  his    favor, 
the   defendants   are    inquired  to    interplead.      Then  follows    the    second 
issue,    title   to    the    subject   matter  of  the    litigation. 

The  I'e   must   be  privity   of   some    sort    between   the   pa"ties, 
such  as   privity  of  estate,    title,    or   contract,    and  the   claims  must 


be   all    of   the    same    nature.       If   the    adverse    claimants   as=^ert    i^ights 
und  .  ■;•  a-'varse    titles,    and   have    claims   dif.^'ering  in  their  ngt^ore, 
the    >)il]    caniot   be   m-int -^  ine".      Thus   v/hen    two    as   essing  districts 
have    assesse-^    the    same   person   for    the    same    ptxjperty   in  each  dis- 
trict,   cljimin':   to    act    under    the    statute,    the   owner   of   the   property- 
may  file   a   bill   of   ini-jrp]  eader   a;3ainst    th^   two   corporations, 
or  ivhen   a   t  ina't    owes    r;nt    to    his   Jandlo/d,    and    two  persons   claim 
through  the    sami    title    to  be    s'jch   ilandlord,    the  tenant   may  file 
a   bill   a.:i;ciinst    b^th,    but    if  in   the    latter   case    th3  claim  of   one 
is   based  upon  a   title    paramount    to    tre    other,    as   when  one   clairi- 
linder    the    ori.^inal  title,    and  the   oth^r   under   a  tax  title,    a   bi]l 
cannot    be   m  inta  ined. 

If..^   -'.    R.  R.    Co.    V  '-^lute,    4   ^aige    384      ' 

Thompson  V  Ebbi  ts,  '-opk.  272 

Stanley  V  ^idaey ,    14   .  &  ",  800 

Story    Eq.  PI.     ?,-•.    239 
The   claims   of    the   seve  -al    defendants  must   not   only  be 
substantially    thesame    in  their   nature,    but   this  must    ^j.'ear   in 
the   bill.      The  bill   must    also    show   that    the    defendants   claim  an 
interest    in  the  whole    subject   natter   of    the    suit    and    be    go   framed 
that    the    dedree    r^ay  embrace   the   whole   of   it. 

Ho'T-^art    V   Cutts,    1   Cr.  5:   P.    197-205 

Crawford  V  "Pi she r,    1   ''are   436-440 
In   statin^:   the  plaintiff's   interest,    it  m^t    ap-rear 
affirmatively   thst  he    stands   neut.-al   as   to    t're    two  defendants.      if 
he  h -s   boiind  himself  to    pay  one    in   any  event,    his    bill    will   be 
dismissed. 

Zouche    V  Harrison,    140   Pa.  St.    430 

National  L.    Ins.  Co,    V  Pingry,    141   'ass.    411 

Atkinson  V   Flanni5;-2n,    70   .':ich.    639 

V/akeman  V  Kingsland,    46   ''.J,    ^.q.    113 
If   the  mat    er   in   dispute    is  money   in   the  hands   of  the 
complainant   he    should   of'er   in  his   bill    to    b'.^ing   it    into    court, 
to    'Jiable    the    court    to   direct   what   shall  be    done   with  it   upon  the 
application  of   iither  of   the  other  parties. 

'^haw  V  poster,    8   Paige    339 
As   a   general    rule    a   sheriff,    who   has    seized   property 
under    an  execution  which  is   claimed  by   a  party  other    thai   the' 
defendant   na-red   in   the   writ,    camot    file    a  bill   of  interpleader 
making   such  adverse   claimants   pr^rties.      If,    however,    there    are 
conflicting   equit   ble    claims,    or    claims    due    :o    sane   event   hapi^n- 
ing   after   the  levy,    for   instance,    the  bankruptcy  of    the    execution 
defendant,    he  may  file   a  bill. 

Tufton  V  Hardinge,     :   Jur.    N.  S.    116 

child  V  \':ann,    L.  R.Eq.    305-7 
There   are    conflicting  claims    sometimes   to    funds   in  the 


XXI  EQ.UITY      P^.r.A^I'TT      A:"D      practice  129 

in  the  shsriff's   hands   arising    .  rom  the    salo    of  pr-operty  on   several 
executions    running   a'5=iinst    the    ssn.i   person  and  in   favor  of   divers 
pe    sons.      In   such   a  case    it   is   held   in  Ai'k.    th-it   the    shei-iff 
may   file   a  bill   of   inte  i^p  leader. 

Lawson  '\    Jot  "an,    19   Ark.    297 
But    as   a   general  rul-a   tMs    cannot    be    done. 

'=;l^?>w  V  (poster,    3  Paige      339 

Parker  V  Barker,    42   ^u''.    7.3 

Mash  ^\    <?nnt    ,    o   rion".    421 
jn  th^jory  th3   bill   is   filed  solely   for  the  benefit   of 
the   complainant   to   j.-;lieve   him  from  vexatious   litig-:ti'~.n  and    liab- 
ility  to  pay    the   sarne    amount    twice.      The  court   will   rot    pern^t    the 
bill  to  be   filed   if   the^-e    is  collusi-^n  betwe:jn   complainant    --n-^   one 
of   fee    pa- ties.      The    complainant  must    file   with   the  bill   an  afi'a- 
davit    i.hit    ther  5  is  no   collusion   between  him  and   either    -'f   '-he 
parties;    and   if  there    are  save    al   complainants   they  m  Kt    all  join 
in  the  affidavit. 

Atkinson  v  'onks,    1   Cow,    ^91 

Fa   ley   V   Blood,    30   !T.  "-^    354-361 

Story    Eq.  PI.    Par.    291-7 

Sha  .  V  poster,    3  Paige,    339 
yn    the   bill   of  interpleader    th3    complainant    sets    forth 
fully  t  }■£    subject  matter   of    the   controversy;    that    the   p  ope  rty  is 
in  his  hands;    th~ithe  has   no   interst    in   it;    I'rat    the   defendants 
narred   claim  the   property   and    the   nature   of   the    claim,    but  not 
their  title.      This  part   of   the    bill  must    be  drawn   so    as    to  show 
that    the   complainant    has   a    -i^^ht   to    compel   the    de fen 'ants   to    inter- 
plead.     The   complainant   must    also    aver,    that  he  is  ignorant,    or 
in   doubt,    as    to  which  of   the  parties   are   entitled  t  o  the   property. 
The   bill  prays    that    the    defendants   may  interplead,    so   that    the 
court   may   determine    to   whom   the  prorer^y  belon^rs.      It    ugi-ially 
prays,    also,    if    t^e   mat  ler  of    controversy  is    a  money    demand,    that 
the  complainant   may  pay  the  money   into   court.      If    a  suit   at   law 
has    been    comen-ed    by    either,    or   both    the    defendants,    or   threat- 
ened by  either  or    both,    the  bill    also  prays,    ths.  t    the   defendants 
may  enjoin   from  farther   pi^ocee    in.^s   against    the   complainant    at 
law. 

Union   Hko    '■   Kerr,    2  !:d.    Ch,    4  3^ 

?r5nchV  Robe  card,    50   ""'t.    43 

BILL^    TO   perpetuate:   '^^STIFOtty 

Any   person,    who    woul^,    unde ;     the    allag-^tioos   contained  in 
his    bill,    become    aititled,    upon  the  ha-  ■  ening  of    saiie   future   event, 
to    an  estate,    or   interest    in   any  property,    real   or  ;  ersonal,    the 
ri.'-^ht   to   which  cannot    by  him  be    legally   investigated,    by   being 


X7I  ^^.QUITY      PLP.A:)I"T'      a.'' ^;      P'^A^TIHE  130 

brought    to    trial    befnt  j   tho    hs  ^^  eni-rr  of   S'jch   avant,    may  maintain 
a  bill    to  rerp3Luat8      he   tislim^'^ny  '^.ista  -ial   for  est  ablisnin.^r 
sue  h  as t  at  J ,    o  •    in  v  a?' s ~ . 

LOi-d    Hurslay  ''    i''itzhg/ din're  ,    6  ^^es.    a";  1-259 

Allen   V  AUsn,    1 ";  "es.    1"  9-135 

Bookec-  V   Hooker,    20   Ga.    777, 

diti,o.      Cases  Eq.PJ.v:  Pr.    315 
Tna    interest    .vhich    vhe    corripl  aia3!nt    has  must    be  a  present 
inte'-est    snd  not    a  mer  J    .-^ontin^ent    interest.      But    if  it    is   a  pres- 
ent   intj-et,    it    is    wholly   immaterial   ho'v  minite   it   m.ay  be,    or  how 
remote    the   pos   ibility  may   be,    of    -he   hapvenin^  of   the     ev^nt   upoa 
which  it    is   to    ba   enjoyed. 

Lord  Dursley  v   i'^itzh^-dinf^e ,    6  ^'es.    251-259 

Allen   "'  Allen,    15  ^^es.    129-135 
Th?    bill   must    set    forth  tl'-i   matie'-    t"  •ching  which  the 
comply  i-^.  ant    desires   to  takJ    ie.fjt  imony.      It   must    show  that   he  hsis 
an    actual   and   not    '^  c '^nt  i  n^  ent    interest,    --nd    th  ^t    the  facts    to 
which  the   proposed   testimony   relates   cannot    be    investigated    immed- 
iately  in   a   court    -f   law  or    equity,    'w     th^t   before    the  facts   can 
be    adjudicated  upon,    the    evidence    of  s  "x  h  witness,    is    indanger   of 
bein'i  lost    by  his   death  or   departure    from  the    st^te.       In  the    latter 
case    the  bill  m'x^.'.    be    a'icompanied  by  affidavit    set    in'^   forth   the 
danger*  of   the    loss    ■.  of   s^xh  testimony. 

Philip   V   Cariv/,    1    P.    \Vms.    116-7 
It    \wDulri   seem  -h -t    the   bi]]    is   demur  -able    unless  it    shows 
that    the  complainants   interest    is  actual,    and  not    capable    of   beins 
bar   ed   by  the   defjnrlant;    that    t]ie  interest    cannot    be   investigated 
immediately,    and  that    the    defendant   has   an   interest    to    contest 
the    cotnplai     -nt's    claimo 

Allan  V.     ^llen,    l^'-es.     129-135 

Larkins   V.    Ayle^vorth,    1   Yern.    10  5 

Dursley  V   r-'itzhsrdnige ,    6  Ves.    2  i2 

El  lice   V  Roupene,    32   ^eav.    30.'. 
The   def-'nse    to   a   bill   to   perpetuati    testimony   is    by 
demurrer,    plea  or   answe.-,    as    in  other   cases.      The    ca.vse,    however, 
is   never    brou-ht    to   a  hearing.      After   the   cause    is    at    issue   upon 
the  merits   a  commission  issues   f  or  t  he   examination  of  witnesses. 

Vatghan  ""■'   Fitzgerald,    1    qch.    ^c  Lef.    316 
At    canmon   law  the   co  rt    wou  i   not   permit    the    testimony 
to    be  published  except    in   support   of   a  suit   or    action,    and  not 
then,    unle.^s   the  witnas?,    w -o    e   ta   timoii'    had   been  taken,    was 
dead,    or    sick;    or   so  aged,    or    infir-;,    that  he    could  not    be    exam- 
ined  in  the  cause. 

Morrison   V    A-^nold,    19   Ves.    669 

Jackson  ".    .^ice,    3  Wend.    180 

Jackson  V  Perkins,    2  Wend.    303 


XXI  -^.quiTY    p:n:.ADi'''r-    a't    p.iagtice  lii 

To   obtainthe  o  -der   oi"  -public  ation,    a  notice   of    Lh^  moti"n 
must    be    se'-v:d,    wiiichmust    be    supported   by   an  aftldavit,    ohat 
the    tjstiraony  os  nec'^a-a'.y   to    be    rnzda    use   of   in  the    complain- 
ant's  behalf,    that    the   ^v  tnes   es    are   dead  or   so  sick,    aged  or 
infirm,    that    ihey  ca-^iot    .ravel   to   ^ive    eviden  e    in  th;   cause,    or 
that    they    are   out   of   t'X^    stjite.      Upon  such  2    sh*>wing   thi  o^der 
of  publication  is    made.      jf  a  pottinn  only  of    rhJtestiinony   taken 
is   used,    the  order    vvill   de    innate    ^'hai    testimony   is   to    h '.   p'-;.b- 
lished. 

Bills    to   pe'petuate    tastimcny   are    seldom  .resorted   to    at 
the  present    tiiie,    the    statutes   in  many  o  ■    t^-«    st    tes  having  pro- 
vided  a  chiarer   and    rrore    expiditious  method  of   accornj;"!  ishi  ■  g  the 
saiiB    pufj^.osi. 

BILL   TO    E7AM/^R   "'ITriEqs'!;*^   DE    BEnn;   ^^JSSE 

This   specie   of  bill    bea.'s    a  close   analogy   to   bills   to 
pe   pecuate    testimony.      put    ths   tv/o   differ   widely,    standing  upon 
distinct    conside   ations.       A  bill   to  perpetuate    testimony  cann-t    be 
maintained  except    in   cases   whe.-e   no    suit    can  be   com-nenced  in 
which  the  desired   testimony  can  be   taken.      Bills    to   '^ake   testimony 
de    bene    esse    are  on  the  othe-.'  hand   sustained   in  aid  of  a    suit 
already  pending. 

c;tory    Eq.P].     P"  ■     250 

.ngell   y  Angell,    1    -c 'c    -.    83 

The   object   of    the   bill   is    to  tak  3    the   testimony  of  wit- 
nes-:es   to    te    use      in  a  pending   action   at    1  a?   in  case   where  'delay 
may  r  jsult    in   the    loss   of   six  hte  stim-^ny,    and   the  bill  may    be    filed 
by  the  plaintiff  or    def  aidant    in   such    suit    at    law. 

^\'hen  a  suit    at    law    can  be    commenced   i-i'rfidiately,    the 
suit   must    be    actually    com'-enced   before    thj   biJ]   is    filed.      If   such 
suit    canot    be    cO'-.-enced,    then  a   bill    to      erpetn^te    t  jstimony 
must    be    filed. 

Angell  V    AngelJ  ,    1    '^.'■z   ".    33-95 

To    entitle  a  pai-ty    to  ra^int    in  i    is    bill  he   must    ave  •:• : 

1-That    there    is    a  r  and  in":   suit,    T.nS    the  exact   nature   of 
t'Te    controversy   in  which    the    testim"iny  of    ih;    vitness  n-msd  will 
be   material, 

2-That    the   smt    .s    in   such  a  conditi-n  th?  t    the    deposit- 
ions  of    such  witnes  ^es   ca-  'ot    be   t  a!<en  by  the  o -.binary  methods 
prescribed  by   lav,    and    that     .'he    aid  of    .he   co-5r*:   of  eq-iity   is 
neces   ary    to  obtain    their    testimony. 

3-Tpe    facts  which   the  plaintiff  expects    to    est-'blish 
by  the    testimony  of    tha   witnasses    to    be    exantaned,    that    the 
coui  t  may  see    that   t.-^ey  are  m   te^'ial    to    the   00  nt  'ove    sy. 


XKI  EqUITY      PL?.ADl'Tr      A.'ID      PRAnTICil  132 

4~The   nscespity  for   taking  tha   testimony,    aid  the  danger 
that   It  may  be    lost    by   delay. 

Richter   V  Jerome,    25  Fed.  :^..    679, 
ditto  Cases    Eq   Pl,>.  ?.'.    3?.l 
The    darker  of    the  loss  of    a  witness's   testimony  may 
arise   frcin  the  age    of   the  witness  or   his    stqte   of  health,    or    flfom 
the    feet    that    he   i  s  the   only  witness   by  wliom  k  given  fact    can  be 
proveci.      In  this    later    case    the    court,    in  view  of    the  uncertainty 
of  life,    will  admit    the    testimony  of    sixh  witness    to    be    t  gj^en 
althou,:3h  he   is   aeithei-    sick,    in   irm  or   aged. 

<5hirley  V  Earl, of    '^'enns,    1   P.    V/ms.    97 

Pearson  V  Ward,    2  -ick.       648 
As    aieneral    rule  a  witnes;^  is  not    treated  as  being  aged 
unless  he   is    seventy  years   of   age. 

PitzhuTh  V  Le-3,    A^nb.     6  5 
But    if  a    witnef;s  is  infirm,    or   in   il]-health  to    an  extent 
to    en  dang  )r  life,    or    topr;v3nt    his   at  . -ndance    at    the   trial,    the 
court    will  permit   his  testimony  to    be   takeni,i  no;    matter  what  his 
age   m.ay  be. 

Phillips   V  Carew,    1   P.  ft  Wms.    117 
If  a  witness  is  going  out  of   the   jurisdiction  of    the 
court   h-i  s    testimony   also  may  be    t  akeno      At    common   law   this  was 
the    case,    although  the  witness   was    going   from  one    division  of    the 
kingdom  to    knother,    as    from  Sc«' 'i'stHotxfca:  England   to  "Scotland.  x 

Botts   V  Verelst,    2   ^ick.    454 
In  framing  a  bill   to  examine  "-itnesses  de    bene   esse,    care 
must    be    taken   to    allege  all   the  mate^-ial   facts  upon  which  the 
right    to  maintain   the  bill   can  be   maint  i  ned,    that   is,    that    the 
witness  JilDse    testimony   you   desire    to  take    is  aged,    infirm,  .about 
to  leave    the  jurisdiction  of   the  court,    or  is    the  only  witness 
by  whom  you   can  prove    a  material   fact,    a^    the    case  may  be.      The 
bill   should   be    supported  also  by  an    affidavit    shewing   the    cir- 
cumstances by  which  the    evidence   intended   to   be   taken  may    be 
otherwise   lost. 

Angell   •■    Angel  1,    1   S.ft  S.    83-91 
'  Phillips  V   Carew,    1   P.Wms.    117 

-tO'-y   Eq.  PI,     Pa-.     257 
The   affidavit   must    be  positive    as    to   the   taaterial   facts, 
and  not    rest   upon   belief  merely.      Thus    vihere   a   bill  was   fi  led 
to  take   the    testimony  of    a  witness   alleged    to  be    the  only  witness, 
and  the  affidavit    alleged    that   he  was    the  only  witness   in  the 
belief  of  the   party,    it   was  held  insufficient    and  that    the   affi- 
davit   should  have    st?,t-d  positively   that   he   was   the   only  witness 
vho   knew   the   fact. 

Rowe   V  ,    13  Ves.    260 


xari  EQUi'i^y    pl.hadi'Tt    mid    p:iactige  133 

Testimony  taken  de    bena    asse    is  only   valid  in  the  cause 
in  which  it    is    taken,    and    arjainst    those   who    are   parties   to    such 
cause.      In  othe^'   respects    the   rules   ap^ilicabie    to  bills    to  pei^pet- 
uate    t3stimony  apply   to  these    billo. 

T^ilJs   de   bene   esse    are   very   seldom  r   sorted    to    at    the 
present    day.      The    st    tutes  of    the    several    states  provide  much  more 
simple    and  direct  methods   for  taking    the      testimony  of   witnesses 
under    tiiose   c  ircimstances,    '''hich  would  pe:-mit    a    bill    to   be    filed 
in   equity  at   common  law.      But   occasionally  a  case   is  found  which 
does   not    fall   within   the  provisions   of   any    statute. 

aichter   V   Jerome,    25   .'-"ed.  •^.    679 
ditto,       Oas.    Eq,    ?!,&?.    321 

There    are    seve'-al    bills   v/hich  we   do  not    notice   for   the 
reason   that    their    form  .depends   lar-rrely  upon  local   statutes;    for 
inst  jice,    bills  of    divorce,    bills    filed   by  judgment    creditors 
against    their    debtors,    bills   for   the  partition  of   land,    bills   for 
the  foreclosure    of  mortgages,    etc. 

-laving  now   gene  over    the  various    steps   taken  in  the  prog- 
ress  of  a   suit    in  equity  we    will    clrse    this   short    synopsis   of 
equity  plea-'^ing   and  practice   with   Lord  Redesdale's   analysis   of 
the  different    kinds  of  bills.      He    says:    "The    several  kinds  of   bills 
have  be  in  usually   cansid-3red    a-^   capable   of  being    arranged  under 
the   general  heads: 

I-Original  Bills,  which  relate  to  seme  matters  not  before 
litigated  in  the  c  c.^rt  by  the  sane  parties  standing  the  same  inter- 
ests. 

IT-Bills   not    ori.^inal    wliich  a:'''e    ji.her    an  addition   to, 
or   a   continuance   of,    an  ori.^inal  bill,    or    both. 

Ill-Bills    which,    thoiigh  occasioned  by  or  seeking    the  benefit 
of   a  former    till,    or  of   a  decision  made   upon   it,    or   attempting   to 
obtain   a  reversal   -^f    a  decision,    are  not    c-nsidered    as   a    ccntinuan- 
ce   of   a  former    bill,    but   in  the  nature    of  original  bills.       And 
though  this  arrangement    is  not  perhaps    the  most    perfect,    yet,    as  i  t 
is  nearly   just,    an^.  haS   been  ve.-  y  generally  adopted   in   argument, 
and  in   the    books   of   rep^-rts  of  practice,    it    will   be    convenient    to 
treat    the  different   kinds   of   bills   with  reference    to  it. 

BILL   OF  REVIEW. 

Until   a  decree    has    been  enrolled   the  cause    is    so    far 
still   peni^ing  th-^t    the   court   may,    upon  petition,    change    and  modify 
the    decree,    but   upon  enrollemtn  the  matter   is   res   adjudicated, 
and  no   omission,    mistake    or   error   can  be    corrected   except    by  a 
bill   of   review. 

The    ordinance    of   Lord   Bacon  is    still    the   law  governing 
this   class   of   cases.      It   provides:    "Mo   decree    shall   be    revised, 
altered,    or    explained,    being  one   under    the  great   seal,     (enrolled) 


XXI  ■CnUT""Y      VL'^.A'^l'^'^-      A"ri      ?'"'.AC'^IC"^  134 

but  upon  a  bill    of   revi^iw,    and  no   bill   of   review   shall    be    ac3mitted, 
except    it   contains   either*  err-or    in   law,    appearing  in   the    body  of 
the    decree,    without    further  examinations   of  matters  of   fact,    or 
some   new  matter  which  hath    arisen  after    the   decree,    and  not    any 
new  proof,    which  might  have    been  used  when  the  decre:j    was  made. 
Nevertheless,    upon    -lev/  proof  th'^.t   has   come    to    li^^ht    after    the   de- 
cree m.ade,    ard    could  not    possibly  have   been  used  at    the    time   when 
the   decx-ej    wts  passed^    a  bill   of   review  may  ba   grounded  by    the 
special   license   cf  the   court,    and  not   otherwise," 

Dexter   V   /\rnold,    5  :.  dson    303 

dit    o,  Cases    '.q.Pl.?:  Pr.    277 

''ill  V  Phelps,    101    -^ed.  ftep.    650 
ditto,        Cases  Eq.Pi.^  Pr.    297 
I-A  bill   maypr^y    relief  ag^dnst    an  injury   suffered, 
or  only  seek   the    assist    nee   of  the    couft    to   enable   the    defendant 
to  defend  himself  ag  'inst    a  possible   future    injury,    or  to  support 
or  defend   a   suit    in  a   court    of  ordinary   jurisdiction.      Original 
bills  have,    tnerjfore,    been  again  divided   into   bills  praying   for 
relief,    and  bills    not   prayiiVT    relief.      An  original  bill  praying 
re  lief  way  be  : 

1-A  bill   praying    the  order  or    decree   of    the    court 
touching   some   ri^t^t  claimed   by    the  person  exhibiting    the  bill,    in 
opposition  to    some    right   claimed  by  the  person  against   whom  the 
bill   is  exhibited. 

2-A  bill    of   interpleader    'vhen   the  person  exhibiting 
the    bill   c  laimes   no    right    in  opposition  to    the  rights    claimed  by 
the  pei'sons   ag.lnst    whom   the  bill    is   e;chibited,    but  prays    the   de- 
cree   of   the  court    touching  the    rights   of    thn  se   persons   f  or  t  he 
safety  of    the  persons    exid biting  the   bill. 

3-A  bill  praying   the    writ   of   certiorari    to    r«iove 
a  cause   from  an  inferior  court    of  equity. 

An  original  bill   MOT   praying    rsief  may  be: 

1-A  bill    to  perpetuate   the   te-^timony  of   witnesses. 

2-A  bill   for    the    discovery  of    facts    resting  within 
the  knowledge   of    the  person  against   whom  the  bill    is   exhibited,    or 
of  deeds,    writings,    or  other    things    in  his   c^jstody  or  power, 

II-A   suit    imperfect    in  its   frame,    or  which  becomes    so 
by  accident,    before  its    end  has    be:n  obtained,    may,    in   some    cases, 
be  rendered  perfect   by  a  nev/   bill,    which  is  not    considered    an  orig- 
inal bill,    but   merely  as    an  a-Mition  or   continuance   of    the    form.er 
bill,    or  both.      A  bill   of    this   kind  may  be: 

1-A  supplemental  bill,    which  is  merely  an  addition 
to    the  original  bill. 

2-A  bill   of  revivor,    which  is    a  continuance   of    the 
original  bill,    when  by  death  or  otherwise    some   party   to  it   has 
become  incapable  of  prosecuting   or   defending  the   suit. 


XXI  EQUITY      PLHIADI'Tt      A!'D      PRACTICE;  135 

3-A   bill    both  of  revivor    and   supjle  ,ent ,    which  con- 
tinues  a   s^-dt    upon   an  abater.-iint    an-!    supplies   defects   which  have 
ar  i;f;9n  from   some    ev9nt    sobseqv^nt    to    the  c  omMencenent    of   the   s^jit. 

III-Eills   fo .'    the  pijirpose   of    cross   litigation   of  matters 
alrea'-'y  pe  ^.dinr^   before   the    court,    or  controverting,    susf'endinn;, 
av';i'''in":  o  .^  car-ying  i    to   execution  a  jud:mint   of   the   coui-t ,    or 
obtamin-'"^    ihi    benefit    of   a   ■^'oit,    wMch  the  plaintiff   is  not    entit- 
led  to    asF    to  Of   c    -tinj;    f  o  t.-    the  pur-pns)   of   sup-'^lying  an:^   defects 
in  it>    have    be    n  'Tenei-^.lJy   conr^idared   inder    the  head  of  bills   in 
th  i  n:iture  of    M^i.-rinal  bills,    thiOv;-:h  occasioned  by,    or   se^kin-:    the 
b en  ef  i t   of   f  o  tTner   bi  'J .''  s ,    a  n'^  m  ay  b  3 : 

1-A    C'-oscv   bill,    exn   bited  by    the    'defendant    in   a   forin- 
er    bill,    ag-ainst    ^he  plaintiff  in   trB    same   bill,    touchin.-:;;    sane 
matte.-    in  litigc^tion    in   the  first    bi'Jl. 

2-A   bill   of   reviev/    to   examine    and. 
revise   a   decree   m-=de   vipon   a  former    bill,    and   siPined    by    the    judge 
or    chancel  lo.r-,    and  enrol 'ed,    whe- jby  it   has    become   a  record  of 
the   cou-.'io 

3-A  bill   in   th;    n'.t'-re   of    a  bill  of    review,    brought 
by  a   person  not   boiand    by   the   former  decre  ■;. 

4-A  bill    to   imi^each  a    decree   on   the  ground  of  fraud. 

5-A  bill    to  suspend    th^  operation  <^f    a  decree    on 
spedial   circ  xmst  ^nces,    or    to  avoid   it    on  the   ground  of  matter 
arisen  subseq'Bnt    to   it. 

6-A   bill    to    carry  a  decree   made    in   a  former    suit 
into   execution. 

7- A  bill    in   the  nriturj   cf   a   bill   of    revivor,    to 
obtain  the  benefit    of   a  suit    after   abatement    in  cert  ?in   cases  which 
do  not    arlmit   of   the  continuance   of   the    original  bill. 

8- A  bill    in    the  nature    of    a  supplemental  bill,    to 
obtain    the  benefit    of  a  suit,    either   af  t  5r    abatement    incases  which 
do   not    admit   of   a  continuance   of    the  original  bill,    or   aft  ;r    the 
suit   has  become    defective   without    abatement,    in    cases    which  do  not 
admit    of   a   supplemental  bill    to    supply  that   defect." 

It  must    be    born   in  mind    th-'t    this    classification  of   bills 
is  principnlly  valuable    in  giving   one      a  compr  .'hens  ive    and  intell- 
igent  view  of   the    entire    field  of   equity  pleading   and  practice. 
If   in  a.ny  given  case    the    f?cts  entitle    ti>e   plaintiff  to    relief,    and 
the   pleader  has    dra^'Am  his   bill  "vith  dije   formality  and   clearly   sets 
forth  such  facts,    he  wj.  1 1  be    entitled    to   relief   alth     'gh  he  may 
have   misnamed  his   bill, 

Dayton    '   Dayton,    63  Mich.    437 

Ridge ly  V  Bond,    18  ''d.    433 

Arnold  V.    Ivleyees,    1  Lea    (Tenn)    315 

Garneal    V  Wilson,    5   Litt.     ("y)    90 

Northman  V  Ins.    Co.    1   Tenno    chy.    ■^^2. 

--0--0--0--0--0--0--0-- 


EQUITY   PLr^A^r^i^T    a:'D    '^'^A'^TICE.  135 


INDEX 


■  -0O0-- 


Abat  3ment ,  121 

Address   of   bill,  2,    38 
Admissions , 

upon    the  record,  94 

by    ar.C3  3rnent  98 

Amendm^ts,  14 

.\nsv/ar,  12,    83 

form  of,  13,    85 

amsndment    of,  89 

suprlenvantal   answars,  90 

joinder  of    several    answers,  91 

taking    answers   off   th?    file,  91 

title  of,  1 

two -fold   character  of,  83 

Appoint'- ant   of    receivers,  15 

Appeals,  19 

Application  for    redress,  20 

Atiachment,    Vv'rit    o"  ,  llO 

Avera-ient   of  jurisdiction   in   bill,  3 


Bill  in  equity, 

bills  of   interpleader, 

bills   to  perpetuate    testimony, 

bills   to    examine    witnesses   de    bene 
e  s  se , 

cross    bill, 

definit  ion, 

e 3 sent  ials   of, 

general   classification, 

part  s  of, 

suppl em ent  rj    bill, 

bill  of   review. 
Changing  part   of   the  bill. 
Confederating  part   of    the  bill. 
Gross   bill, 


127 

129 

131 

125; 

,135 

26 

27 

134 

1 

123 

133 

3, 

,  46 

2, 

,  46 

125 

T7oTjT"^y  ■oT-,A--pTn,    ^"-r,  T^^AH^TCE.  137 


INDEX 


Deere  as,  18, 105 

enroll  -ent    of,  107 

final,  105 

form  o;',  106 

interlocutory,  105 

part  s  0  f ,  18 

rectifying,  18,107 

sattlir.'T,  106 

who    ar3    bound   by^  108 

enrol Irnsnt    of,  109 

Defendant , 

default  of,  53 

appearance   of,  56 

Defense, 

modes  of,  23 

upon  the  merits,  24 

Demurrers,  8,    58 

argument   of,  69 

f  o  nn  0  f ,  9,56 

g^eneral    and   special,  66 

ore    tenus,  68 

separate    demur-  ers,  65 

speaking    demurrers,  68 

to    the    jurisdiction,  61 

to    the   parson,  61 

to    the  matter   of   t  he    bill,  61 

to    the    substance,  62 

to   the  form,  6o 

to   discovery,  63 

Disclaimer  ,  8,    57 

Dismissing    bill    at    hearing,  103 


Execution,    iN-it    of,  110 


Feigned  issues,  104 

Piling    the   bill,  51 


Hearin^T    the   cause,  17,    102 


117 

117 

113 

118 

127 

14, 

111 

3, 

47 

2, 

38 

EQUITY   PL^A''I";^n    A''D    PR;\CTIGT!;  1^8 


I    ;T  D    E  X 


Inju.-^ctio    s, 

mandatory    "c  prevsntive, 
c  omr- lO n    i   sp  e  c  i  al , 
when   become  operative, 

Int  erp leader , 

Inte I'locuGory  proce    dings, 

Interrogating  pai-t    of    the  bill, 

Int  rcdiict  ion  cf   bill, 


Jurat    &    Si  gnat  lore,  5 

.jurisdiction   clause,  3,      46 


!'isjoind3r   of  parties,  34 

Motions,  ill 

of    course,  112 

special,  112 

ex  part  3,  112 

Multifariousness,  35 


Ne   exeat,    writ    of,  119 


Orders,  114 

nunc   pro    tianc,  115 

service    of,  115 

enforcing  of,  116 

modifying   &  discharge  of,                                117 


Payment    o  f  money   into    court,  15 

Parties    to    s'uLt    in   equity,  31 

formal,  32 

indispensibl  3 ,  32 

Petitions,  114 

PI  9i  nt  iff '  s  sc  at  ernent  ,  21 
Plaintiff's   application    for  redress, 

requisites   o.',  20 

Pleadings,   defined,  26 

object   of,  20 


EQUITY   PLSADI'T    A'TD  ^RAC'i'TCE.  139 


I    IT   D  E  X 


Pleas,  9,       71 

affinnative   or  purs,  9,      75 

anomalous,  9,      75 

grounds   of,  78 

forms   of,  11,      78 

in   bar,  10 

founded   on   statute,  10 

founded  on  matter  of  record,  10 

"      in  pais,  10 

in  abat  ^n-ant,  23 

in   confession   and    avoidance,  24 

negr-.tive,  9,      75 

overrullin^   of,  80 

replication  to,  11,    25 

to    the  jurisdiction,  10 

to    the  person  of  plaintiff,  10 

to   bil]    or    form  thereof,  10 

Praj-er  for  relief,  4,      48 

for    redress,  4,      49 

production  of  p    pers^  121 


Receivers,  120 

References,  15 

Replication   to   plea,  12,      25 

"      to   answer,  16,      93 

Revivor,  122 


Statin'^  part    of  bi]l,  2,      39 

degree  of  certainty,  39 

mat    er   of   all  eg    tion,  40 

manner  of  al?eg   tions,  41 

subpoena  &  Service,  5,    49,      52 

Suit   in   equity,  1 

when  commenced,  52 

who    ma  y  s  ue  ,  29 

Supplemental    bills,  123 


Testimony,  16,       99 

Writ   of  executi-^n,  110 

Writ    of  at.achmeni-,  110 

Writ    of  ne   exeat,  119 


OUTLINI!      OS'      COOLEY     ON     TORTS, 


B  Y 


Prof.     Wilgus- 


I      <t 


I 


»»**»• **« * 


CHAPTER     XVI 


Deceit     or     gx'aud* 

I,   Definitions; 

Fraud  is  a  deception  or  circumvention,  by  any  kind  of  arti- 
fice, practiced  by  one  person  upon  another,  whereby  the 
former  interferes  with  or  deprives  the  latter  of  his 
lea-a.1  ri,-lits,  or  obtains  an  unjust  advantage  over  him. 
Pettel-' 3  Squity,  p..  130;  Robinson's  El.  Law,  §  315. 
It  is  either  actual  or  constructive.  Cooley,  554. 

"Actual  fraud,  consists  in  deaeption  practiced  in  order  to 
induce  anotlier  to  part  with  property  or  surrender  some 
legal  rijht,  and  w]iich  accomplishes  the  end  designed o" 
Cooley,  555.   "Leading  a  man  into  damage  by  wilfully  cr 
recklessly  cnusii\';  him  to  believe  and  acr  on  a  falsehood." 
Hale,  Torts,  §  1^7 c  Any  artifice  by  which  a  person  is 
deceived  tc  '  :'  di3adv-uT(.oj6;,"-  Bi?pham*s  Eq.,  S  206  o 

Constructive  frnuds  are  those  by  construction  of  law,  arising 
from  the  intrinsic  nature  of  the  bargain  itself,  or  from 
the  circ\imst<?jices  and  conditions  of  the  xpartiea.- 
Cooley,  554;  3i3phan' s' Eq.,  §  205. 
They  are  of  two  !jenerQl   kinds:   Those, 

1.  Affecting  third  parties..  \iy   indirectly  depriving  them  of 

a  richt, — such  as  maldnj  a  voluntary  conveyance  of  prop- 
erty without  providing  for  the  payment  of  debts ;  or  by 
giving  a  secret  lien  on  propc^rty  retained  in  possossion,, 
and  thereby  misleading  thos-  dealing  with  the  parcy. 
•  2.  Affecting  a  party  to  the  transaction,  by  obtaining  an 

advantage,  or  accepting  benefits  when  it  would  be  uncon- 
scionable to  do  30,  arising  u&ually  from  the  exercise  of 
undue  influence  in  confidental  relations.   Cooley  pp. 
554-5.   (Sae  ne::t  chapter  J. 


y:.a  ::p  ^  e  t,t  k  .  <  v        t;  ^  o 


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v/.  C   0   0  L  i:  Y      0  II      T   0  R  T   S.  2. 

II,  Slements   of   an  action  for   cctual  fraud; 

1.  Alle;;atioii3    leceasary 

1.  TliT,t   certain  representations  were  inaxie ; 

2.  In  order  to   influence  plaintiff's   conduct; 

3.  T:iat  plaintiff   acted  on  them; 

4 .  "^liat  they  were  untrue  ; 

5.  "      plaintiff  was  dama<;ed^ 

6.  "      the  daiiia^:;e  was  proximately  caused  by  the  de- 

deception. 

2.  Proof: 

1.  Burden  is  upon  the  party   alle^'ing  fraud,    as  fraud  is 
is  not  generally  presuirxed   in  the   absence   of   any 
evidence. 

2.  It  however  r.ny,    and  generally  must,  be   establis:.ed 
b;'  indirect   or  circumstantial   evidence,    in  wv.ich  t.  .a 
jury  will  draw  suc'i  inference    as  t..e  facts   justify.      A 

preponderance   of   evidence   is   sufficient. 

III.  As   to   the  .lethod   of   ■  ixcinj   tlie   representations,  —  they  may 

be     ade, 

1.  By  words,  eit  :er  oral,  written,  or  printed,  or  by  encour- 

a;i  ;j  a  known  delusion. 

2.  By  acts,    such  as  nods,   winks,    siniles,    shake   of   t-ie  }iead,   tc 

3.  By   silence,   w:i.en  t:.\ere   is   a  duty  to   speak. 

(a)  As    .1    jeneral  rulo  f.iere   is   no   duty  to   speak  unle-s 
called  upon,    ..md  then  not    generally  a  duty  _to   speak, 
but  only  to   spe?-:  the   truth  if   inforaation  is  vol- 
unteered.     T   e    [general  rule  beinj,  —  caveat   eraptor,- 
let   the  purchaser  beware,    or  talce   care  of  hii;self . 
If   t]ie  sources   of   inforiJiation   are   equally  open  to 
both  parties,    and  no    trick  or   artifice,    or  frJ.se 

or  iiisleadiiTij  partial   statement   is   resorted  to  by 
any  one  to  mislenjd  the   otlier,    aiid   an  advantage   is 
jained  by  one   over  t  :e   other,    such  advaitaje   is 
lejitimate   and  the   loser  must   c-',ar^'e   it   to  his   own 
c  arelessness. 

(b )  But   silence   is  fraudulent  when 

1.  Active   steps   are  taken  to   prevent   the  discovery 
of   the  truth; 

2.  Stateiients  made,    tho   true,    are  laisleadinjj  be- 
cause  incomplete   or  parti^J.. 

3.  Tliere   is   a  duty  to   speak; 

(1)  By   an  insolvent  purchaser   aj   to  his   financial 
cc.idition,    1£  he   intends     lot  to   pay, — or, 
hy  so,  le   cases   if  he  has   no  jood  reason  for 
believing  he   can  pay.      Cooley,    559. 


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'    ill) 


\7.  COOL-.    V'      0  VT      T    0  71  T    S.  3. 


(a)   By  ono  who   piys  "by   ciieck  on  a  bank^,    if  iic 
has   no    expectation  tliat   funds   to  his   credit 
will  bo  there   to  neot   it.      Cooloy,    5R0. 

(3)  '^non  a  material   chai-ige  has   taken  place   in 
the   condition  of   things  pending   a  negotia- 
tion^  known  to   one   and  not   to   the  other. 

,    Cooley,    5^0. 

(4)  '.Thon  one  sells  an  article  kncm  by  hin  to 
bo  unfit  for  the  specific  purpose  for  which 
it  is  kno^vn  to  be  purchased.   Cooley,  560. 

(5)  By  the  retail  seller  to  the  consuj-ier;,  of 

the  condition  of  foods,  provisions,  or  anim- 
als.  There  is  hero  a  warranty  of  tlie  suit- 
ability of  t'-.e  foods  and  provisions,  a-nd 
that  the  aninals  have  no  contagious  disease, 
urloss  the  purchr.sor  is  in  some  way  warned, 
Cooley,  r^a-^.. 

(6)  By  creditors  havin^;  special  moans  of  infer- 
maxion  as  to  the  financial  condition  of 
their  debtors  or  servants;  they  owe  a  duty 
to  the  surety  of  such  debtor  or  a^ent  to 
Sive  information  or  allow  it  to  be  obtained. 

(7)  By  persons  selling  property  the  title  to 
which  thoy  know  is  defective. 

(8)  By  one  stmdinj  by  wldle  his  property  is 
bein'j  sold  to  another,  to  make  known  his 
ri  ;hts  to  t'lo  property. 

Silence  in  those  cases,  where  ono  is  misled  tlioro- 
by  to  his  d"jiat^e  is  a  f-raudulent  i.iisrei-irosentation. 

IV.  Tj.iq   representation  must  relate 

1.  To  the  existence  or  non  existence  of  a  present  or  paso 
material  fact ;  and  not  jener"'J.ly  to  the  existence  or  non- 
existence of  a  future  fAct;  s  tat  erne  its  as  to  the  latter 
a:,\ount  only  to  tho  expression  of  opinions,  or  tjie  :aakin/j; 
of  promises, — w":j.icji,  if  upon  valuaJole  consider-^.tions, 
i^ay  be  valid  contracts  of  warrojity,  a:id  if  tliey  do  not 
co.ie  to  pass  as  promised,  vrill  t^ive  aii  auction  for  breach 
of  contra-ct  of  warraaty,  but  not  an  action  _ex  delicto 
for  f r -.ud . 

2.  ITof  '^enerall^'-  to  premises. 

But  there  are  c^.ses  in  wh.ich  the  promise  itself  is  tho 
meais  of  accoi  plishinj;  the  fraud,  as  when  an  insolent 
,         purclia^-ser  purch-^ses  ^.oods  witii  an  intention  not  to  pay 

for  them, — in  the  purchase  is  an  implied  prom.ise  to  pay,- 


pix'~V3-  -fe 


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/.  C    0   0  L  I]  Y      0   J     T   0  ^v  T   S.  4. 


or   in  of  er  words   tiie   represent^.tion  ox'   a  present   inten- 
tion to   p^.y>  wliicli   is   foO-se,        So   tooj,   w^iere  A  j,    a  ben- 
efici-'.ry  under   a  will^    proiiises  B . ;,    a  dyinj   testator;, 
f  ..at  ';e    leod   not   provile    i/i   a  codicil   x''or  t:.o  jfoenefit 
of   C,  'because  lie.  A.,  will  iiake  tlic  desired  convcy.ance^ 
an  intention  not   to   carry  out   tho  proi.iisc   is  fraudulent. 
Cooley,    5'^9. 

3.  ITor  Opinions:      Ilxpressions   of   opinions,   I-iowcver  positive 

and  false,    are  not    ,ener.'J.ly  fraudulent,— -for  tlie   reason 
tha,t  person  do   not  usually  rely  upon  exproosions   of 
opinion. 

I'alse  assertions  of  valuo,  profits,  or  cost,  (accord- 
in;  to  some  cases)  aro  ■.  lero  expressions  of  opinion^  and 
not   statoiients   as   to   facts. 

Exceptions   to   t/ds   rule   exist  wnen  ti'.e   opinion   is   tiiat 
of   an  export,    or  one  liavinj   special  means   of  knowledje, 
to   one   3>.o  \  as   no   sucL  special  vieanid   of  loiowled^'e   or 
experience, — lilce   a  purcn.aser  f ro  :  a,  de^^J-cr  of  dry  ^oods 
havin,:    expert   laiowlcd,,e   of    3uc'i  jcods.      Cooloy,    5^5. 

4.  ITor  : latter 3   of  do  .estic    lo;?:      A  Misrepresentation  a:3   to  wliat 

tlie  law  of   tl:e   state  "/I. ere  t;  .e   transaction  occurs,    or 
the  le;al   effect   of    a  tra-is  "'.ction,    is   not   a  fraudulent 
mis-representation  of   a  present   or  pai-st  fact, — for  the 
reason  that   all  persons   are   supposed  to   know  the   law. 
But   a  knoWii  filse   statement   as   to  wh  .t   the   law  of   a 
foreijn  st  ,te   is,    J:;    x  .  dsrcpresontation  of   fact   ai.ount- 
inj   to   fraud,    if   t.  .e   other  elOMonts   are  present, — t-je 
reason  oein,;^   tl.?-t   pnrsons   are  not   supposed   to   know  tho 
foreijn  la7»      Cooley,    S*^!?,.      9   Pick.    (:;Tais.)    112. 

V.  The   r  epr  es  e:  it  at  ions  must   '2®  ^-I'^terial, —   such   "as   like   poison, 

ontered   into   tie  barjnin,    tainted    ""^id  destroyed   it"  ;   tl^ey 
iiiust  be   of  decided   character,    calculated   to  nisle.ad  by   in- 
ducin;   action.       Tl-ether  the   re^oresentation  is   a  jiaterial  or 
not  depends  very  lar^jely  upon  t!.e  jTacts   of  t.  e  case, — but 
perlia"os   it   is    s^jTe   to    say  fat   all   statei^ents    are  m.aterial, 
^".'"-lich  if  ki'-own  to  be   fij.se,    fie   contract  would   not  have  been 
mr.de.      35  IIo.,    439;   IS'^.  .lass.,    318.      Clark,    Contracts,    p. 
334;   Cooley,    530. 

VI .  T"  i.ey  must  ]\ave  been   acced   on,   b^  one  havinj   t.ne   ri  ^,i.t   to    rely 
on  them. 

Duty  of   self  pro-':ection. 

1.   There  is  a  ;ener-il  duty  on  every  person  to  exercise 
ordinary  care  for  his  own  protection.   If  therefore  tiie  ^cans 


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r.-Ni- 


C    0   0   L   :]  Y      0  IT   '"    0  'l  ^'^    S.  5. 


o±    Ic'io^"    edje   are   sjqua.lly   avo.ilable,    one  ^vlio   carelessly  trusts 
liiraself   in  tlie  liands   of   one  wao   ^las   esi   ii^terost   to  nislecd 
Iiiii,    ratlior  than  use   t':\e  -r.e-n^    at  'la.id  for   self   protection, 
^vill  not  bo     ■e^T-l   to   co.  ipl.\in.      Coole^'',    570, 

(a)  But  w\ere  tn.e  nen^is   of   self  ^)rotection  are 
not    ax  '  F.nd   or   roalily   available,    st-Lteaents 
of   t"  e  party  liavin^;  full   opportunity  of   Icnow— 
lodjG  r.iade   to   tne  ot.'^er  party  a^-e   in  tne  nat- 
ure of  warranties, — and   if  f  ^J.se  jive   a  ri^Lt 
of    action.      CooD.ey,    5'?1. 

(b )  So,    representations  uado  for  tne   express  pur- 
pose  of  disaniinj  vigilance,    or  preventinj  tlic 
use  of   information  t.  .at   could  be  obtained,    aiid 
liavinj  that   effect,  when  ordinary  px~udencc  has 
been  exercised,    a.re  fraudulent,    if  I'also. 

"he  question  then  beco"i.ies   a  question  of  duo 
care  for  his   own  protection  upon  tn.e   jart   of 
tb.e  plaintiff.      Cooley,    571-3. 

'''■is   luh.e   is   applied  wb.en   si.;n^^.ture3   of   por- 
5C;:S    --re   obtained   tc   docu.  .eyits  w:ij-:Ji  they  can- 
not  01    b.-:VG  nejlected  to   re^d.      j\1so   in  re- 
presentations  relatinj   to   i ecords   of   title;  — 
as  wli.ere    a  pure:),  .ser,  who  was   about   to    exa  dne 
t:  e   title   to    land  wb.icLi  he  was   about   to   pur- 
chase,   the   seller  represented  t."  at  he  lir^d  just 
had   the   record   txa:  ined    and  found   it    -il   rijlit. 
Cooloy,    S'^o-^  ;   ^.1  Pa.    St.,    4?7. 
S.        '.Tho  nay  rel;r  on  representations: 

(a)        In  joneral  only  t?ie  party  to  whora  they  are 
made,    os   are  neant   to  be  i.iade,    can   rely  on 
them-,  but   sone   representations  are  n.axle   to 
the  public    at  larje  for  txie  purpose   of   indue- 
in:,-   axiy  one   of   the  public    tc    act  upoii   then, — 
in  which  event   any  one  who   sees   or  hears   them 
nay  rely  on  then.      Bi<t   in  jener-il,    one   to  whou 
tliey  are  not  nale,    thou^^'h  overl.,e?-rd,    or   seen, 
has  no   rijht   to   rely  upon  tlierii,    or  if  ho  does 
and   is  dar.iojed  cannot   coiaplain.     fraudulent 
prospectuses   of   corporations   to    induce   sub- 
scriptions,  f.ilse  declarations   of  dividends, 
or  false   reports,   na.de  for  a  lihe  purpose   are 
made   to   t'le  public,    and   an;;,'-  one  who   acts  upon 
thera  to  his  doj-.ia^-e  can  complain.      Cooloy,    5"^?. 

(b  )         '>^hen  a  person  by  fraudulent   representations 
i.iEuie   to   one   party  to    a  contract   induces  him 
to  breaJc  the   contract,    the   other  pa.rty  to   the 
contract  nay  hold   the  party  making  fraudulent 
representations.    Cooley,    5^1. 


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,/.  0  U   T  L   I  IT  S      0  ?        T   0  n  T   S.  6. 


VII.    Tlie   representations  riust  he   f  .'lae   in  x  .-.c  t ,    and  i:i.ade    eitlier, 

1.  V7itli  :::io'7lwd';e   or't.'.eir  x   Isity,    and  with  intent   to 
deceive;   or, 

2.  .Vit:.\  no   laiowled-je   and  no  'oellef.  Tout   reclclossly  nade 
wit'-i  a  like   intent ;  or, 

3.  Supposin;;   thew  to  "be   true,   but  with  no    reason  for   such 
oelief ,   hut  wore  nevertlieless   ■  ade  positively  for  purpose 
ol    inducing    action.      Ccoley,    532-6. 

Or  as   stateu   in  Hale  on  'i'orts,    ^   169,   J-^^'^/jard,    §  , 

t:iere   is    a  fraudulent    intent,   when 

(1)  "/le  party  Ime'v  iiis   statei.ient   to  be  false;   or 

(2)  avinj  no  lcnowled,jG  of  their  trut:.  or  faJ.sity,  he 
did  not  believe  them  to  be   true;   or 

(3)  Z-vin;  no  Icnowledje  of  their  truth  or  frisity,  ho 
yet  reijresented  the  i  to  be  true  of  his  ovm  Icnow- 
led.je. 

VIII.Rei'aedies:      Ther.e   are, 

1.  "'.eociidi-i ;  t^e  contract  by  the  person  defrauded,  return 
w:iat  was  received,  and  sue  to  recover  what  iias  boen  de- 
livered under   it.      COi  iplain.rjnt  nust   act  promptly. 

Coo ley,    589. 

2.  Affirm  the   contract    ruid   suo  for  drjip^-es   xor  tl.ie  f rpxid  ; 
or  the  party  moy  so   affina  the   contr^-ct,   v/ith  full 
knowledge   of   oil  'lis   rights     -s  to  i.iake   it   clear  he   in- 
tends to    a'oide  by  the   contract   and  waive  vjny  remedy  he 
nijht  h.ave  :  — d-      Cooley,    591. 

3.  T:'.e   courts  may  deny    redress  when  both  parties   are   equally 
culp-^ble,    as  "/hen  both  a,ttompt  to   defraud  a  third,    a^id 
one  obtains   an    "dvaiitaje   over  the  other, — when  there 

w:',s  no   special  confidential  relation  existing  between 
them.    Cooley,    591, 

IX.      Duress, —   is    a  specie^  of   fraud  due  to   compulsion;    and   is 
either 
1.        Of   the  person,    accomplisht-d  by 
imprisonment,   unlawful,    or 

"  l-jvful,    if  3  one  thins   is  wror.jfully 

demanded   and  .;iven  up. 

Threats   of  loss  of  life,    liiiib,    or  liberty. 
Show  of   force    o"     z   cannot  be   resisted. 
2*  9±.  joods,   b;"-    .'orcibly   soisinj   or  with'ioldinj  ^oods, 

until  somet— i.i:   is    :iven  for  their  relG;ase;   or 

by   takin;   thorn  under   color   of  lejul   authority 
that   is  void.      Cooloy,    592-3. 


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Sxtortlon,    is   a  fraud  by  the   e::r.ction  ox"   illei_jal  fees 


•  C  II  A  ?  T   S  U      :iVII. 

Tron^'s   in  Conf  iclenti^o.l   ilela^tions  . 

Definitions 

The  wronjs    o^risinj   in  these   relations   are  usually  construotiTe 
f  rauds ;   as  defined   above   in  Chapter  XVT .  ;   though  in  sone 
cases  th^ey   are  actual  frauds,    accomplished   throi.i:;h  de- 
ception-.-- Por  the  iiost  part   'u-ioy  are   accomplished  Toy 

1.  Undue  influence, —  by  wjiich  is  neant   the   exercise   of   an  •. 

i;ifluence    ':'risin,'j  frohi  a  relation  of   confidence,    trust, 
or   superiority,    to     obtain  an  undue  or  unjust   ??ii/njito;e 
of   anot:ier.      "  .e   influence  to  be  undue   is  wrivo  ti.an  Liei'O 
persuasion,  by  pi-ebentinj   reasons,    mid   le/s    bhaji  coer- 
cion by  force   of   threats   or  duress,  --but  yet   an  over- 
coninj   of   tjie  will  by  the   exertion  uf   a  control  or  in- 
fluence due   to   a  .confidence   ro_.'>oscd,   v/eaknoss 
of  intelect,    or   stress   of  circunstances,  v/hereby  one   is 
led  to   do  what  ho  would  not   ot.her^^ise  do,    to  his  dis- 
advantat;o.      Ccoley,    535;   2?  /j:.i.   8-.  ^.   Zinc.    453. 

Or   as  defined    in  the  Cal     Civil   Code,  Undue   Influence 
consists, 

(1)  in  the  use, by  one    in  w^ion  a  confidence  is   reposed 
bj    another,    or  who  holds   a  real  or  apparent   author- 
ity over  hi;i,    of   such  confidence   ir  authority,   foi' 
the  purpose  of  obtaining   an  unfadr  adv>?iitaje  over 
hii.l 

(2)  in  talcin;;;   an  uiif  \ir  rxlv.-'^ita^-e   of   another's  wealmeFS 
of  Mind ;   or 

(•■?.)    in  taking'   a  cjrossly  o'lpressive   and  unf-\ir  advantag'c 
of   another's  necessities   or  distress.   §  1575.     • 
Dakota  Code,    §   886. 

2.  T/'.e  Confidential   relations,    arc   those   in  which  one  party 

trusts   either  vrholly  or  partially  3iis  pecuniary  or  other 
interests  to   the  fidelity  and   ince^rity  of   another,   by 
whom  he   expects   t    .n  to  be   -guarded   and  protected.    Cooley 
595. 
They  may  arise   eit  or  fron   (A)   Status,   or    (B)    Convention- 
A.        Those   arising  fruu  status,    are  principally  the  domsstJc 
relations,    of  hutiband   and  wife,   persons   en;^-aged  to  narry, 
and  parent   and  child. 


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C   0   0  L  S  Y      0  IT     T   0  R  T   S.  8. 


(1)  'T'lie   rcidtio.i.  of  I'^usbaiid   and  wife. 

(a)  In  order  t:ir.t   tlie  fullest   confidence  may   exist 
bet-veen   tlie  Imsband   and   tlio  wiie^    tl-'ey   are 
s'.iieldcd  froii  xestifyin^j  to   coLii.iuiij. cations  be- 
tween themselves,    and   eitl^er  for  or   a:^'ainst  .one 
axiotlier  •,  yot   if   Oi.e  violates   tliis   confidence 

by  di"vul^'inj   sucli  cotaciuni cations^    tliero  is  no 
reraedy . 

(b)  Tliey   are    also    allowed,   or   even  eucouraced,    to 
perform  for  uno   aiiotlaer  generous   acxs   of  Icind- 
ner::s  pioiupted  by   affection   and  'jood  will, 

(c)  Theii-  business  clealiniiS,   however,   between  them- 
selves,   are   carefully  scrutinized,    especially 

in  favor  of  the  wife,   where   the  husbyjid  mig^ht 
exorcise  his   influence  to   obtain  annunduc   pJ^an- 
t?je.      And   "Ai-jy  undue   advanta^i'D  gained  by   the 
U3e   of   the  marital  relation  is   a  le^^al  fraud  on 
t:ie  wife  which  courts   of  equity  will  not   allow 
to    st^iid  to  her  prejudicei'        And  under  statutes 
in   sopie   cases   K\g   car.  sue   at   law.      Cooley,   ±595-?. 

(2)  Parties   or^a  :ed  to  iaariy . 

( a )  Seduction . 

The  wrong   accomplished  here   is  most  frequently 
seduction,    and  by  most   cases   is   considered   a, 
2ross   f 1  aud   if   accomplished  under  promise   to 
marry,  wliic.'i  was   not   intended   to  be  fulfilled. 
Some  fow  carjes  hold  that   if   the  seduction   is 
co.iGertod   *o,    thoujh  the   consent   is  fraudulently 

obtained,    x^ie  parties   are   in  equal  fault, 
and   no    -.-ijht   of    action   oxiLits.      Cooleir,    59?. 

(b)  Seciet   conveyances,      diminishing  the  property 
vi.jhts   tliat  wore   expected  to  be   acquired  hy 
the  marrirce   is   a  fraud   in  equity,    for  which 
such  relief   as   is   possible   then  will  be  given, 
by  ^ivin^   an  equivalent  out   of   remaining  prop- 
erty.    But   if  discovered  befcie  marria^je,    con- 
siomijatins;   the  m^rria^e  waives   the   rijht   to   com- 
plain. 

(c)  Obtaining-   the  property  by  one,    cf   the   other,    sis 
a  (i;ift  ci"  for   an  inadequate  consideration,    and 
tlien   refusiuj  to   coi.ipleto   tno  marriatje,    is   a 
sti"on;   if  not   conclusive  bad^e  of  fxaud. 
Cooley,,   '^G?  . 

(3)1   L  nvu  — :,1   child. 

(a)  Becc-itoe  of  the  parental  influence  and  authority 
excicisod  durin^^  asiLnKiijD.iinotity,    all  deal- 
ing's between  such  parent   o-id   child   sooji   after 


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C   0   0  L  E  Y     0  IT     T   0  R  T   S.  9~. 


a"'t.er  arri.vinj   at  minority  whereby  the  child 
maker,  voluntary  ronvr!yances.v    or  conToyancos  for 
an  incdsc-iiate   con?ideraticnj,  w.'.ll  be  ,ietJ.ou3ly 
bcr'ati.nisod   and   set   aaidfi   ^f  they  r,a.'.nnt  be   shown 
to  be  spontaneous   Pi^ts   of  +]ie  child,    after  he 
knows  fu?.ly  hir   omi  ri^ihtSc 
(b)  Taen  parents  bee  cm-)  o^.d    and   infirm^    ar.d   the 
child' s  mind   in   the   controlling  one.    tho   awne 
ntle  is   applied  for  the  prevtectlon  c?f  the  parv- 
oi\t.       Cuoley  p.  6C2. 

(4)  So   too  gifts   or  conveyances  n-p^n  i.iadequate   consid^ 
era'cions  by  thopte  livi-n^   in.  lllecal   i^exuan.   relations 
v;lll  be   set   asilo   ,;.lLess   sho^wn  to  have  b&3n  msd.e 
with  froo  volitj.onc        Gonley,   603. 

(5)  Dealin(^5  vnf:   psraciis  lauT'Tn  to  ha^e  wftslr,  intellect^ 
reqv.iroo  f-.  .  utjv.ost  sood  faith,   and  sifts  madi.,  duea 
to   0.1-7     '"■---      'Ou  or  ^juiclne  meens  will  bo  set  aside  .ex 
A  like  '  .     .   .   v-i-'.ios  to  dealir^s  Jvith  iutoxicatod 
peroons  .      Cool'?y  6C3''i4c 

B.  Tho  principal  Conventional'    o.-  Contvact   relations   are  those  of 
„     ^     .     1.     Oorporat-ey/  corporation  er  oroditor  and— corporate  ^ 

^1^       X'i^  corporation  itself,     as  the  representivo  of. 
the   collective  interoits  of  the   sharehold'^rs.  and 
creditors  r      /r^d  generally  for  wronga  that 
affect  rll  al  ike  on]y  the  corporation  can 
sue.     Wrongs   oi'   this  kind  would  be  exce^din^ 
corporate  pcwers*    embsr^zlin^j   the  f unds  •,   loss 
of  funds  due  to   ns.j.lij.'-ence ;   or  arij""  danStje  t& 
all  resulting  from  a  failure  to  perf .-.nn  their 
official,  duties.     If  the  corporation  will  not, 
or  ci'n  rot   si\e,    for  redres?>   cvn  individual 
shareholder  can  ^uh  on  beh«\lf  of  himself  and 
all  others  to   redress   the  wrorg   ,    after  ex- 
hausting all  remedies  within  the  corporation 
that  are  pcss.xble. 

(2)        The  shareholders   individual ly,    such  as 

1.  To   keep  wi+hin  corporate  powers. 

2.  To  t:ivz  correct   inf orriation,  when  called. 
*v    >  '     •  •  for>, 

[  -  '*  3c   To   fU.lo^7  inspection  of  books; 

4~    "^0   transfer  shares .    or  register  the 

transfer; 
5.   To  pay  diridends  dvly  d?rlared,    and  in 
some  crses  declare  .dividends. 


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C   0   0  L  E  Y      0  IT     T   0  xl  T   S.  10. 


fp ,    Take  no   axiV'^jitaGe  of  ]iis  position  to 

tlie  pre'udjce   of  Ixis   a.3?ociates. 
?.    To  jive  no    advanteje   to   one   associate 

over   anotjier. 
8.    To   exerci&e  c^ue   care   and  iaitlifvlness 
in  t.iie  disctarj^e   of  his   offic^'al  duties. 
A  court  of   equity  will   enjoin   the  1st,    allow  an 

action   of  damages   for   tJie  violation  of   2,3,4:, 
5^and  8    if  damages   result,    and   also   compel  by 
mandai;ius   tho  porfcnnance   of  3   and  4. 
Vi/'rorvjs  which  violate  6,    are   accocplisLied  usually  by 
officers  makin,;^  purcliasos   for  the  c'..rpora.tion, , 
and  chargini^i"   it  more   than  the  cost;   or   selling 
the  corpo"ate  property   in  sach  way  as   not   to 
obtain  full  value,    and  purchasing   it   thau- 
selves.      In  either  of   these  ce-sps   a  vrrOiOg   is 
done,    and  the  transaction  will  be   set   aside; 
so   to   soiiie   cases  hold   that   seJ.eL-  by  or    to   the 
CO.'  oraclon  to   or  by   its   officers  will  be   set 
asik..3,    though  there  was   in  fa-ct  no   fraud   in 
t]ie   transaction, --bee a.use    tho   law  will  not 
allow  tae  trustee  to  place  his   interest   in 
opposition  to    t;'.at   of   the   cestui   qui   tr^^st. 
The   officers   and   siiareliolders,    a.s   individuals,    can 
doal   Arith  ont,   ancthor. 
Under  7,    the   sjiareholdsr  obtaiiiin,^-   the  undue   ad- 
vancoge  will   be   required   to    surrender   it  for 
the  benefit   cf   all. 
(3)        "Po   Creditors, — the    corp.,rate  offirbrs.,    for 

the  protection  of   tho   rights   of   creditors   owe 
tl'.0":.i  t'le   iuty ,  when  the   ccr"ooration  becomes 
insolvent   to  use   reasonable   care   and  diligence 
t3  presci-vc    t^io  property  for  their   security 
so  far   as  possible, — the   relation  then  be- 
comes  sii-Dlar   to    that   of   trustee,    and  bonific  — 
i  ^ry . 

The  officers  liiay   also  becone  liable   tc   deal- 
ers with  a  corporation  fcr   exceeding   t)ieir 
powers   apon   a^i  iuplied  wajrranty  of   authority^ 
ajid  t.-'oy   also  nay  i.iake  themselves  liable  for 
their  vnrongful    acts   injur inj,    third  parties. 
Cooiey,   ^04-7. 
2.    Trustees   and   cestui      q^^e   trust:      This   is   a  relation  thit 

requires   tho  utucst  good  faith,    and  is   a  relation  pecul- 
iarly  protectel  by   courts   of   equity.      In  fact   t:ie   rights 


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of  the  feneficiai-y  were   not  orisif^ally  recognized   in   a 
court   of   l'?w,   but   only'  in  equity.      The   '•elation  is 
crer.tccl  "by  a  cl n\-eyaiice  of  property  ty  A.    tu  B.    to  hold 
for  the  use,    ur  benefit  of,    or   in  trust   for  C.      In  which 
case  t/.-ie  legal  title   and  possy&sion  are  in  B.,  while 
the  beneficial   interest   is   ir..  C., — there   ir   ro   contract 
relation   enforceable   in  law  between  A.    ejid   C,    ur  B. 
and  C.,  but   only  between  A.    and  B.      If   t^i.erefnre  B. 
failed   to  pei'i ona  the  trust,    it  was   a  viola.tion  of   the 
contract  wj  tli  A.    of  v.-':  :  ch  he   only   could   coiiplain   in  law, 
C.    only  ccu]d  covipil-An     in  Equity, — the  cuu:^t  here   either 
enjuiniuj   tLe  wro*xj,    or  relieving  the  offendir^-  trustes. 
Part:.cula,r   n.;les   are, 

(1)  A  purchase  by   t]".e   trusxee  of  a  part 

or   all  of   tbe  trusc   property  will  be   set   aside  i^pun 
the   ap;^lic-vtion  of  the  beneficiary, ---for  the  reason 
thr't   tl  ■:     ■'  "cha3e   is   in  law  a  sale  by   the  t?-ustr*e 
to  hii:i;   ■j--'j-—he  haA/iJi:;   the  le^al  title   alreac^.y, — 
ana  t]-iis  places  his  oivii  intero.st   in   conflict  with 
t.iat   of  tjie  '-^  enef  ic  iary.      ThJ.s   is   true   though  there 
was  no   frai^'d   in     fact,    and   t>ou,j:;li  tJio   sa^.e  was 
otb.erwise  fair  and  fur   a  fu?.l  price.     However,    the 
beneficiary    'fuat   is   competent   to   contract,  nay  with 
full  kiiowledje  of  his   ri^^-hts,  by  express.   aj;reeuent, 
or  lon:<    acquiesence,    ra-:ify  the   s-^e. 

(2)  Tne   saino   rule  applies  to    s;\Les  by    the   trustee   of 
his   o"Tn  property   to   hiuself    as    trustee,    for  tlje  use 
of  t]..e  trust   estate. 

(3)  The   SPi:i3   rules   apply   to    execators,    adninlstrators, 
:juardians,    assiQ'nees   in  ba.nkruptcy,    partners,    and 
aj;entj, —   allhcujh  ".iiany   or  most   of  these  were   rem- 
edied  in  courts   of   law   as  well   as   equity. 

Cooley  p.    (o  12-15  o 
Principal   a^.'A  A'ent . 

(1)  Courts   of   law  had   juri  .diction  of   t^.is   relation, 
because   it  was   one   of  contract.      The  duties  of  the 
a^jent  however,    are   similar  to   those  of   a  ti-ustee. 

(2)  Tjie  principal  owes   the   a^j,ent   tl.ie  duty  to  warn  him 
of  perils   and  use  care  for  Iiis  protection, 
and  pay  for   3ei-vices   rendered   in   accordance  with 
the   ccntrac+. 

(3)  T:e   a^Qit  owes   ti'ie  principal    the  duty  to  use  care 
and  diiijence   to   perform  the   services    agreed  to 

be  perfon.od. 

(4)  T^ie   30i  ?   rules   applj'-   to   pa.rtners'  when   acting;  for 
the  part.'Oi  jhi-i.      Cooley,   616-". 


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c  0  0  L  ::  Y    0  IT    to  :.;  t  s.  12. 


4.    Attorney   and   client,      '^liis    is   a  relation  of   confidence 
and   trust  b3'-  tlie   client   in    tac   skill   and   integrity  of 
the   attorney, 

(1)  So    if   tne   attorney  "by  unwarrantalole   acts   obtain 
gifts   or  conveyances  of   property  from  the   client, 
they  will  be   set   aside. 

(2)  So   toe,  where  the   attorney  by  unwarrantable   acts 
renders  himself  liable   to   tldrd  parties,    and   exacts 
i"ide;iiiity  from  the  client, --it  lAtill  be   set    aside. 

(3)  The   attorney' 3  lips   are   sealed  by  the   law  e.s   to 
matters  (i'iven  lain  in  confidence  by  tl.e   client,    aiid 
if  disclosed  without  his   consent,    to   the  daiiit^e  of 
the   client   the  attorney  Kis  liable. 

(4)  So   too,  he   cannot   ser^t;   two  masters,   by   axtin^;   "^.s 
covmsel  or  attorney  for  both  parties   to   an  adverse 
litigation;      the   one  tha.t   nan  show  rejultiuj  drixi- 
age   C8ai  holci   the   attorney  for   it.,    if  duo   to  his 
acts   or    oii:.,'f?ioi";s  .■      Cooloy  616-7. 

■5*   Scrivenerq,      or    *;h'o   -.   vvho  draw  up  lejal  doci^monts   for 
others,    if   inter jscci   tlienselves  ;iust   not   o.ly    act   in 
good  faith,  but  must  maice   sure  that  his   interest   does 
n»t  ::Uslea/Li  his    judjmont   to    the  damage   of   t]i3   others 
part3'- •,  he  will  be    estopped  ircm  claij.hng   a^ii   advantage 
so   obtained.      "?ne   rulo   is  frequently   applied   to    incur- 
ance   companies  upon   contracts  made  by  their   agents 
Cooley.    «19. 
^  •        Physic  ians  juid   Clei'gymon  . 

(1)  At   comi.ion  law   confidentia]    comrounications      in 
these   relations   >were  jiot   protected    as    in   rase   of 
attorney   ?aid  client,    and   c.^uld  be   called   for,    and 
required   to  be  divulged,   upon   the  vitress    stand ; 
and   if  divulged   elseivhere,   no   action  for  damages 
could  be  maintained. 

(2)  Statutes  have  quite  frequently  changed  this  rule, 
so  far  as  not  to  require  then  to  be  given  in  evid- 
ence . 

(3)  The  law  ali_.o   recognizes   t]ip  influence   that   physic- 
ians  sind  clergymen   acquire   over   their  patients   and 
parishioners, :  due   to   t]iG   coixfidence   reposed,    and 
t]ip   opportunity ;    especiaJ-ly  in  cases  of  last   ill- 
ness,  to  u}iduly   exert    it  fo;*  their  special   advan- 
tage  at   that   tii.'ie  -      "lenco   all   transactions    in  tho 
way  uf  volu-i*-y;iy  conveyances   and  gifts  under   such 
circuMstancos  will  bo   sot    aside  nnlos'^   i+    can  be 
Clearly   jhown    chat  no   advantage  was   taken. 


>  i*^ 


'■^  :     rr     ,  oof     ■■::. 


-i 


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n. 


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^Vi   V^x^-ipl 


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AW 

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(■>    !•   -.     ■■  /-. 


ei?^ 


•  -1  ■  '■> 


7.  c  0  0  L  :;]  Y     0  "J     T  0  R  '^  S.  13. 


c  1.  A  1  T  :]  ?.    ::viii. 

llastor   ruid  Serv?iit. 

I.  Def Initlona: 

Employer   (in  tl\o   senso  used  aere   xor  cou/enience) ,    is   ono 

who  prescribes   aii   end  or  final   result  to  'oa   aocoiinplisliodj 
tliroujli  t]\e   aid   oi"   otx.ers,  witiiout   retaining   tiie  power 
to   control  tlie  noans   of   carrying'   it  out. 

Master,   a  raaster  is   ono  wlio   not  only  preset  Toes    tlie   oud  or 

final  result  of   a  certain  undertaking;,   but    also   retains 
t'le  po'ver  of   controlinj   it  by  directing  tlio     leaxis   of 
carryi  ij   it  out.     One  wlio   controls  the  work,   or  ivl-io 
retainr;   t^o  power  or  rijlit   to   control  it 

Indopendent   Co \i_t rector,    is  one  wlio  undertakeb   to   prodv-co  a 
certain  reovlt  for   eui  ouiployer,   tlio  neans   and  nannor 
of  produci].;   f  at   rosult  boin^   loft  within  hi? 
own  control,   or  ri  ;  t  of   control. 

Tlie  terra  applies   to   all  persons  follo^%intj   re^;ular 
independont   oiaployjient,   wl^o   of  for  t  '.eir  services   to  the 
public,      and   accept   ei.rploinnent,   usinj   thoir  own  moans 
of  perforraance.     Coolcy,   '^47. 

Servant      is  one  bound   to   oboy  the  r.iastor's  directions   if, 

8UTd  whon,    t'ley  are  coiTiaunicated   to  hin.      One  who  for  tho 
tiiio  bein?  places  hiiiself   in  a  position  of   subordination 
to   another   in  co.ri'yin'    out   tlie  business   of   the   latter; 
this   includes    a  child   e:aploycd   about   the  parent's   siffairs, 
a  mere  volunteer,   an  a;ont,    either  jenoral  or  special, 
an  off icor  of   "-   -'riv^.te   corporation,   or  of   a  public   cor— 
I)oratic  1  i.i  t;ie  _  -.na^o;ient  ©f  its  property.,   but  not   tho 
le:jislative,    judioial,    executive  or  police  officers 
jenerally  in  the   e:cerci3e   of   tlieir  public  functions. 
Cooley,   p.   6^*?. 

"^h.e   servant  of  one  mastwr  na^,-,   for  a  certain  timo   and 
purpose  beco-:e   tho  servant  of     nothor  iiaster  cvon  thoujh 
the  fonier  is  to  pay  liin. 

II.  Rules   of  liability. 

A.    Of  tlie  Has  tor. 

1.    xO  third  porso.13   injiirod  by  acts   of   servant; 
Gener.al   rule,   "^e  master  is   responsible  for  t.  le 
wrongful   acts  of  his   servant   coiuiitted  while  on 
the  master's  business   aiid  within  the   apparent   scope 
of  " lis   authority.      Tho   rule  extends   to   include 
ne..,lije   ce,   fraudulent,   deceitful,  wilfull,   malic- 
ious   ai-nj.   oncn   criminal   acts,  when  done   in  tji3  mas- 
ter's  business   and  within  the   scope  of   servant's 


,,,  Ticrro^    c.    +   r 

0fei^5  :?--^i^-4 


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-    .  ■  *  '  ,         .'  -  -         ^-  .-    ^  J.  •.  . ,        ,  '  .         T. .,.-.;  A 

;     ■     .      .■:':-'\-  -0    c;  .  ■;.:    fs  >    :;■:  ■    :  .t 


■^£^^':^tiSh&'^ 


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;,,.^Gv;or 


^i^j^  /-.,, 


COOLEYONTORTS.  14. 


..utliorj.ty,    tjrxOi^tjli  done   in  najloct,   Gxceas,    or  dia<» 
rogard  of  t-\G  master'  s   instructions,  without  liis 
knowledge,    and   as   tlio   i-03ult  of   a  mi  stake   of  fact' 
or  law  on  the  part   of    the   sorvaiat 
HBuain^So   i-^cTudos   every thir^   the  seivant  may  do   for 
th      .>-•■': Oa'  -Pjith  his  'i.xpress  or  implied  sanction. 
Sec  .'0  of  c>'  Viority  is  >iot  doteminod  "by  instructions, 
(?r  hy   the    borina   of  the   contract,  but  by  whatevsr 
maybe  reasonably  consideiod   as   incident  to   or  t^an- 
ctionod  by  ths  customs  of  the  occupation   in  which 
the   servant  Is  at  t]io  time  employed; — tho  c.pparent 
scope  of  authority  controls,   that  is,   thp.t  whi'^h 
tho  principal  or  iiast^r  has  apparently  hold  th*^ 
servpait  ovx;  as   posspssinc* 

If  the   sei'vant   sT,©ps  ontirelj'"  outcido  cf  this 
authori+y,,    cnl  undortp.kes   to  do   soniot}-.ing  for  hin-* 
self  J   the  mafter  is  no+   liable  for  a  resultintj 
injuryo 
Roast/ns:      The  folloivi-'\'  h.ave  boon  su^^'cstod  as   reasons 
for  'f.he  I'-.'.-Oo 

1.  What  on.  :'.c  \jy  tuiother  ho  does  himneHf .  This 
woula  soam  to  ppply  on^.y  to  expresjly  authorized 
acts 

2.  The  ma'tur  ov^ht  to   oo  caxoful  in  choosing;  ser^ 
vants.      If   ilii!^  was   the  true  reason^    it  would  bo   a 
defense  for  master  to  show  that  ]\&  had   exorcised 
duo  care   in  solsctiiij  his   scrvaiilis  ;  but   tha.t  will 
not  excuso  the  ntastero 

3.  "Not  becm^sa  my  sei'vant   is  authorized  bj'  me  or 
porsonally  x-oprosents  me,  but  becsjiso  ho  is   about 
.<.^'-  affairs,    and  I   oxa  hound  to   see  ths-t  my  affairs 
are   condiActed  with  due  rejard   to   the   safety  of 
others,"   seeroa  to  be  more  nearly  the  true   reason 
for  the   rule. 

Several  pe.rl;icalar  acases   or  class-es     of  cases  ray  arise, 
in  which  the  servant's  act  may  be  due  to: 
(a)   Speciiir;   orders,   carefully  carried  out. 
(b)' Jsl'e^li^once 

(c)  Dxcess  or  Llistal-e   in  performance. 

(d)  Wilful   and  delibci'E.to  wrong. 

(a)   Specific  ^,.;ders .  Ruly  •,  For  injuries  resulting  from  rroc- 
iflc   or  dors  the  ir^aster  is  liable  not  only  for  what 
he  has   expressly  dirocted,   but   also  for  the  natural 
and  prcbs-ble  consequences   uf  CBjri~y±nQ  thorn  out> 
even  if  done  with  due  care   so  far  as   servant   is 
concerned;   tho   sane   i-ule   applies    if  dcno  by  an 


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'..iO-i'-y 


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. ."   i/fv^; 

O;. 

T  ' 

'.'i'i  i 

.    .' 

...„,+    ^z- 

■   i'U; 

:jri-i. 

.  •-*■*■ 

;•>[ 

..■)■ 

■;.::r   x^ 

■■""■•', 

£ '.'.  r 

fed  o;t   f,; fC-'-rf -'O'Mt  ^iQui 

,-...    -.v,  :-'i-vo    :/:  ^!-':\--iro    .^^Y'■^^■o:'  .■■j.^iKvCiC  (^) 


C   0   0  L  S  Y     0  IT     T   0  R  T  S.  15, 


Independent  contractor. 

("b)  Ne,,li^9nco.     Rulo;      Jj'or  injuries  resulting  frOna  negll- 
sonce  of  the   set-vant,    a  i.iaster  is  liable   if  tlie 
serrant  was,   at  tlie  time   on  his  master.' s  "bxisineas, 
and  that   is   a  question  of  fact.      If  servant,   was 
en^a£jed   in  some  pursuit  of  his   owiij,    the  master  is 
not   liable., — there  i;iU3t,  however,  be  not   only  de- 
viation "avc    botal  departure  from  the  master's  bus- 
iuGss   to    excuse   t^ie  master. 

(c^^  Excess  or  Mistake.     Rulo:      The  Jiaster  is   liable   if  the 
serv.Tnt   intended  or   undertook  to  do   an   act  for  the 
laaster  of  the   cla3s  which  he  was   authorised  to  do, 
and  which  if  done  properly,   or  under  the  circiAi.i- 
staiices   supposed  by   the   sei-vant  to   exist,   wo"ald 
have  been  lawful. 
Reason,-     'Jlien  a  person  puts   another  in  his  place  to 
do   n,  clpss   of   acts   in  his   absence,  he  necessarily 
leaves   the   3ervo:'it   to  deterriiine   according  to  the 
circuj-isteiicGs  t'at    arise j   when  and  how  the   act 
should  bo  done. 
Cases. 

lilxcesbive  force  freqv.cntly  occurs   in  the   removal 
of  pasbeiv,'ers   from  vehicles  h.y  servants  of   coimion 
carriers,   etc . 

Histalcos    "requently  occur  in  making   arrests  of 
persons   suspocted  of  defrauding   railroad  companies, 
ect .      In  such  cases  to  make  the  .master  liable   it 
must  be   shown, 

(1)  T'lat  tho   ari'est  would  have  been  justifiable 
if  the  offense  '^ad  reallj''  been  com:;-u.ttf5d  by 
the  party   Hccixsedo 

(2)  That   such  arror/;^  was  within,  the  scope   of  the 
employment  of  the   30i-vant  who  made    it. 

If   the  act   is  wholly  outside  of   authority,   and 
is   such  a  things   as   the  master  himself  would 
havo  no   authority  to  do,   even   if  the  facts 
v/ere   such  as   the   servaiit   tho\;iijht  them  to  be, 
the  i-iaster  is  not   liable, 
(d)  Wilful  and   intentional  acts. 

The  master  io   liable  not   only  for  such  acts   as 
were  directed,   but   also   such  as  he  was    suffered  or 
allowed  to  ^o,  within  the  real  or  apparent  scope 
of  the  mas'our' 3  business.      In  this   connection  the 
motive  of  the   servant   i?   import pjit  in   eiscertainins 
the  fact   as  to  w]iether  he  was   in  fact   acting  for 


U^..ir  i 


-, &H.yiJ.:.,ri  j^  cfrurfj<*«.: ;. •  ^  v-;   ^u- •  ■. 


:b  ^e^""'  "■"  ■  Y>' v<---: 


•  "'      ^•■-^'-      ■■    "-  ;-,,.v,-i-,.  ite^;^^^  9''v»i/-..: 


TZS- 


x>^.'^- 


..^^O'fS^fl.^i^^^^--' 


"f  .■''  '■■ : 


f      j.^. 


OJ.  is-         *>*-        '-- 


.  ■  r  ■?  *^ 
•':.«  ZJJA  ■■■■■ 


'■>■-. 


J,  C   0   0  L  r;  Y      0  11      T   0  R  T   S.  16. 


the  master,    or  only  Tor  h.iraself , — but   tlic  motive 
IS  liot  conclii&ive.      '^'..le   real  test  is,   whether   "that 
Tvhich  lie  aid  '.vas   sO'.ietUint^  his   employment   contem- 
plated,   sciiethiiij  w]iica  if  he   s.iould  do   it  IsMfuHy, 
}iemvjht  do   in  the   employer's  name," — and   tne   cir~ 
cumstaiices  of   this   employi'ient   called  torth  the 
specific  wrongful  act.      Cooloy,   626-631. 
(e)  Disooedience .        "It   is   immaterial   to   the  master's 

liability    t'lat   the   servant  waL   at   the   time  disobey- 
in^,   orders,    net;loctiu^  proscribed  precautions,   or 
f^ili'nj  to   obejr   directions, — for  it   is   the  master's 
dutjHx  to   300   xhat   tnay  are    in  fact  obo/ed, —     el^e 
lie  becomes   liable   for  resulting   injury."      Cooloy  632. 
(^)   Criminal  Li  ability ,;      '^i'ho  n.aster  may  in  some   cases  b^ 
criminally  liable;   this  onii  occur  ;fhen  certain 
Statutes   re^.-ulatirc'  polico  mat  tiers,    impose  ponal  ■ 
tios   re.cai'dless  of   intent,    such   ^3   rolate   to   the 
s.^le  of   adu].teratod  foods,    liquors,    etc.,    and  on- 
ijaginj   in.  business  wxthout    d.  license,    etc. 
Su''-a^;ents.      The   above  '-ulos   e:;tond  to   include   acts  done 
by   sub-G^jdnts  or  .aub-servants   in  "the  same 

mannor   as  th.ose  of   servants   or   a^jents,   if  they  wore 
employed  by   ajencs   or   servruits  under   auohority, 
eitlier   exiDrejs,    or  implied,    or   arising  from  custom 
or   aeco.isity. 
Partners.      Al   c    a  partnership   is   liable  for  actd   of 

part::fei-b  lone   in  the  course  of   tho  firm's  business 
a.ni  wiohir,  the  scope  of  the  partner's   authority. 
2.   Master'  s  Liability  to   Sfarvants; 

The  p?.rty  injured  may  be  anoxhei'    servant   of  the   sijne 
master,    in  which  case  lules  different  from  those   abovo 
Siven  apply,   to  understaiiid  these   it   Ilj  necessciry  to   con- 
sider   t'lO 

Duties  of   the  master  to'Tard  hxs   soivants.      Tlr^cso   are  J 
1.   To  use  reasonable,    ordinary   care   to   furnish  safe 
and  suitable  machinery,    implomer-tc,    appliances, 
materials,    and  place*  to   carry  on  the  work.      The 
master   is   not   an  insurer   in  these  matters,   but 
must  use   3r.v-"\  '"^re^   preccution   and  fcrejit^ht  as   a 
reasor^'""-^    "-.  .lucit  maii  would  exercise. 
2*      To  u  JG   -"e   :  w  lable  care   in  procuring   and   retaining 
competent,    s^hllful  and    (periiaps)   a  £;Ufficiont  num- 
ber o"^   3?:  v. "Jits   to   executf^  tho  wo^'h  properly. 
Note,      'hese  duties   are  personal  to   the  master  and 


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IJ-Ul-i 


C   0   0  L  !]]  Y     C  I^     'T   0    "\  T   S.  17. 


and   caiiaot  "be  deIe(j;atGd.  to   ...uotliGr  so    as   to   relieve 
hin  fron  liability.      If  thoy  are   in  fact  delegated, 
the  iaastt;r   Ig   lialDlo  for  tliu  defaults   of   thy  per- 
son to  whom   thoy   are  delegated.    Cooley  po    662 « 

of  Liability; 

The  master   is  therefore  liahle   to  his   servants, 
for  his   Qvm  S-Jli^.-^.^^^^^oe   in 

(1)  Prpnq.3ePT      Aiising  from  dangerous  j^reraises  of 
"ihioh  tho   .servant  v;as  not   asAraro,  hut  which 
the  mr.;.vter  laiew  or  by  reasonable   care  could 
have  knovm.      Cooley  p.   648.      (1st   n.u.o)o 

(2)  Tools.   A.rising  from  latent  dangers   in  tools, 
■  achinery  and  materials,    knovm  or  negligently 
untoown,   to   the  iiastor,  but  unknown  to   tho 
servant.    Cooley  pc   6  5?,  (4th  i-ule). 

(3)  Pvepairs :.   I'or  failinj   to  uake  iDromised   repairs 
v/ithin  a  reasonable  time   after  proi'iiso   is  made^ 
Cooley  6^vl    (6th  i-ule  )  = 

(4)  Sei-vants  -.     Per   employing,    or  retaining   after 
notice   ox"  unfitness,    incoupetGuc   servants,    and 
in  some  jurisdictions  failing  to   0;iploy  a  suf- 
ficient  nuinber   of   servaxits=      (in  many  juris- 
dictions  this   rule   is  not  frvored).    Cooley 
659    ([Hh    rule), 

(5)  I iiexpo r i eac ed   servants^      In  failing   to  warn, 
and  U3.1CC  clear  to^    inexperienced   servants, 
the  perils   of  the   service.      Coo].ey  6  52    (rule  2) 

(^  ^        ?.?IXi5®  H^i  contei.iplatedo     i'or  injuries   suf- 
fered ^oy   serva^its  when  temporai'ily  called  on 
by  master  to   poi-forra  unfamiliar"  duties  not   in 
the  usual   course   of  his   omployiient.,  without 
givin^-    such  servant  full   iufonaation  as   to 
ri3ks   attending   such  service.      Cooley  355. 

(?)        i'or   injur;^^   arising  from  his   own  act   combined 

v/ith  that   of   a  fellow  servant. 
(8)        I'or   injuries   arising   in  other  business.      /)  •      1*0'*- 
General  ru.le  or  :-       ^iplo.  <n^-^JU^  c^     y^^r^~  J^..u>^UUJ^, 

The  iiaster  i  ;■      jt   liable  to  his   servant  for  the 
risks   that    oxe  i.  uident  to   the  business   and  which 
tho   servant  loiows   as  well   as  the  master;   the   ser- 
vant  is   supposed  to   consider  these   risks   in  fixing 
upon  tho  price  of  his   services.   Among   the  risks 
incident  to   t}io  business  whic'i  the  servant   assunes 
is  the  risk  of   injury  from  other   servants   of   same 
master.      Cooley,  J?  34. 


■■.■o,:j.-vf 


^'i-i  -i-^ 


■•  r&it'&j  "»Y 


K  <«;■•! 


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;^'5i\  TO..  ••    _ 


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il.L 


'.   £    J. 


^^H^ 


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//.  OOOLEYONTORTS.  18 


2.  Liability  foi    injury   to    se^nrejnt  by   e.  felluw  sf»i*vant. 
1.     ^OCTTion  low  i'i-rlo;      A  mcster  is  not  liable  to  bis 
sorv  \ats  :.'oi    injuries   arising  frou  'ibe  wrongful 
act  or  \.  ^311. -enc*  of  a  fello\7  servrjit  dono  in  tbo 
c our 36  of  tbeir  common  cmploymfent >  proTjdGd  tbe 
muster  bad.  used  due  cue   in  aelecting  or  retaining 
tbe  servant  w^oose  act  causod  tbe   injury « 
Explanation 5 

A  fellow  servant  by  tbe   corauaon  law  is   onu  en- 
r^-at^od  in  tbe  eaiao  coiiji?jr  puroult>   tbo  saj^e  general 
Iciiid  of   omployraont  witl:   otber  servants  of  v/baterer- 
grad.e  or  degree,    and  vmiov  tl'e  BJiae  gcutr.a]    control 
or  Master. 

(a)  Tbey  juat  be  under  the  same  general  control 
or  master. 

(b)  In  tbe  same  zoimaon  oraploymentj— not  nocossar- 
■:Zy  engaged  in  'ioiritj;  tbj   saire  kind  of  work, 

bu\    ■•n  ."diLjed  in  attaining  or  furi^beriiii^    tbe   siiaid 
i^ci-'^ral  object,   so   tbat   tbe  risk  of  injury  by 
ono  Is  so  nucb  a  natural  and  necessary  conso- 
quonce   of  tbe   eniployi^iout   tiia'c  tbo  otb-er  is 
presuined  to  liave  considered  it  in  tbe  wages 
asked. 

(c)  Tbe  grade  is  iimaaterial,-— Tbe  injuied  servant 
raay  be  of   an  inferior  gr^le   to  tbat  of  tbe 
one  c  ^.usii\^  tne  injux-j,   and   evew  under  bis 
control.,    so  loi\-;  as  tbe  offending  servant  j.s    • 
not  at  tbe  txus  engaged  in  performing  tbe  perr» 
sonal  duties  of  tbe  inastbr,    above  de3ijnate4c 

(d)  Tbe  dcp c^iti-iert   of  tbe  work  is   inanaterial   alaOj 
so   lo-L,,   se   it   is   a  departi'ient  or  division  of 
tbo  rc'?  jB'ieral  oiT>i"iluym«nt . 

2*   p'ti-^ ^ ^'  y.t^.^'     A  dofVTt'l.iiiJiTl  0;°  diyioiott  of  tbo   aoroO'    • 
^ ti*  1 1  f? r al  ortiplo^yriQent . 

Tbe  al-ove  are  tbe  jenerai.ly  i*ccepted  rules,  but 
by  statutes  in  England  and  many  States,'  and  by 
Courts  in  several  States,   tbey  bfeve  been  consider?- 
ably  modified.      Tbeso  modifications  usually  r.re  as 
follows,      eitl:er  one  or  botbi: 
(a)        Superior  ser^rant   rule.--  In  son-.e   states   n. 

rule  ob  Loins  tliat   eveiy  superior     servant  bavr^ 
ing   control  of  otliers   is   a  vice  priuoipal, 
and  tr  0  master   is  r-^jsponbible-  to   evor^'  jo-infer— 
ier  seirvant  under  control  of   sucb  supoiior, 
for  injuries  arising  from  tbe  vrrcngful   and 
negligent  acts  ef  sucb  superiors ;  but  if  sucb 


<-T-         7... .;..•;    ,     ,  '"h.  *■■  .;, .  .  .n- 

...i;:..,  .._;)  -.or- 

^5Sli-^*jt,i:  ...       -:.      .;^:::crcr         .--:;■ 

;■'    -.-^  '  ■      ■■■.  -Jin- 

=^i:t  "i^^a:-  (tsit*;-  ;i.:^y  /ftC&u-  ni*-  "iar  q.o.  •\Cf?w-: 

."srviviur-  x- ■  :/:uX!:  as.  .         v  orr 


:';€&"  i?ri.tfa^.';> -.•  ;  lO'fte^id^- 


sr: 


4->% 


■-;-•*.* ...       V. 


..-•-,5. ,  ..r:.t>fv\as'.    T...M  i-irr. 

,^.r..  .  ,icr  arj.  '■«••  ex:.  i^0ji7.o~  ':.  .^li: 


J,  C00L3Y0N      TORTS.  19, 


superic^:   sCxV^nt   is   inju'^ed  by   an   iiiferior 
sonrar.t"  s   act^,   the  laastor   ■'.s   iiot  liable, 

(Tills   r^lle   It  f savored  by  many   of  t>ae   courts 
0^   tliO  Sout^j-O-rii  Sind  -./escem  States,  by  many 
t3xt  writers,    a.nd   i  lany  states  have  nado   it   a 
St  atuxory   r alo )  . 

(b  )       Dopart-jionttil   rulo,  -  -     In   other  St'?tGs   it   is 
held   a  laborer   in  one  department   of   a  jreat 
enterprise   is   not  a  fellow  soi-v?Jit  with  a 
laborer  in   0j:.other   and  .  .separate  department 
of  the  3Q1V.0  enterprise,  —  (e.   ^j.Tho   t^ain  de- 
partiaent  ox*    l:he   road.  dept.    of   a  R.  R0» 

(Tliis  rule  is  aiiplied  in  Georgia,  Kentucky, 
Teru  OSS6G,  and  Illinois,  and  aiDparently  fav- 
ored  Dy  the  J.   S.    Court3). 

(c)        Co:' -binat^cn  rule,--  In  otj.iar  states,    a  cora- 
binacion  of   t.iese   rules   is   apolied,"-that   is, 
a  laaster   l3   liable   to   an  inferior   servant  in- 
jured  eit}ier  by   a  superior  ssr^ront   in  that 
departhicnt   or  by   any   servant   in  any  otjior  de— 
parti':-9nt . 

Volunteers^,      Tho>se  h.8.vinj   or  representing  no   inter- 
est  in  tiio  worlc  a;id  are  not   c^jployed  by  pro- 
per  ?Arthorit.y,   but  volunteer  of  their  own 
notion,    or   at   t:''ie   request   of   cue  h&vinj  no 
authority  to   e^iploy,    are   considered   fellow 
servarits  with  t";e   others    enja,j;ed   in  t^^e  work,., 
and   c  i:v.>ot   recover  for  d"'i.ia,j;es  done   in  :the 
sexvice  b;"/    th.e  fruit   of  other   servants* 

If,  however.,   the  person  volunteering  has   an 
interest   oi   his   own  or   rep'^esonts   the   interest 
of   another  peioon,    and   aui-sists   for   the  pur- 
pose of   aidinj   o^   adv-'iicinj   it  he   is   not  then 
a  fellow  s3)rvant. 
B-   Liability  of  t;.ie  Servant. 
1.     To  the  riacitei-. 

(a)  In  tort,    t'le   servant   is   liable   to   the  uaster 
for   ai:'y  tort   corTjiitted   ai_^ainst   the  Master  that 
13   not   sinply   a  breach  of  the  contract   of   ser- 

Yico;c.     J.    conversion  of  property  left   or 
put   ill  .is  cj.:arjo,    etc. 

(b)  _In  contract.   The   servant   is   liable   to  iiaster 
for  .:ro-.ch  of  his   contract   of   service,    and 
ilso   foi    t":e  wront;ful  or  ne^lijent   cicts  done 

by  the  servant  to  t'lird  persons  to  whor.i  the 
i.iaster  is  liable  unless  done  ur^der  specific 
orders  of  the  luaster. 


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•     '*i"     "to     fi!)'".' 

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-.-  •.'.on   &f  CI 


t:^6 


coolhyoittoh^s.  20, 


?/.        To   tliird  porsona. 

General  _ru_le.    An  a,j;ent   or   sorvar.t   is  ptEsonally 

responsible    co   t-.dru   r.o,rties  for  doin^'      soi^ietliirig 
vihic-'!.  "iG  onxit  not  to  liave  dcne^   "but  not   ior  lia-ving 
dcno   soJMOt.Ving  vmicli  ty  tlie  terifis  of  Iiis    employ- 
ment  r^.lcne  lie   ou^'nt   to  liave   done  ,    in  the  latter 
ca.e   t\.e   sorvmit    is  liable   to   the  laaster  onl;y,   for 
th;?se  dutie.-    m-e  not   fixed  Ly   law,   bjit  only  by 

the   contract  with  the  /-.aster,    for  y-hoi-i  alone  he 
has  proiaised   to  porforr^   t..on.     Eut  for    txie   s;eiTcJit' s 
rnisf  eas  ^jico  or  ma-lf casance,   or  rojlijencc,    or  un- 
lawful acts   in  doir,j  h^  s  Liaster's   sfcr"i'ice  Lo   is 
liable   to  persons   injured  j, --for   he,    in  coiiuaun  jrith 
all  others,    is   required   to  do  whac  ho  has   a  I'ijht 
to  do,   witLi  due   respect    to   the   rij,-iits   of  otaers. 

That   th.e   seivant  'vas  obe/injj  the  viaster'L,  direc- 
tions,   or    ifiint  ho  recaiTOd  no    i^^dv nji fc a^^ e ,    or  indeed 
acted  in     -.od  fai'Jv  b'i^lie/ini;    ohs  i.iasbor  had   a 
ri^h'o    to   v^o  '.    ...0  was  done,   does  not   oxcus-e   tho 
servvnt  fvj-n  liability,— but  '.le  lag;^"  b-j   entitled  to 
indemnity  from  mastero 
•^  •  Z2.  ^eJLoT/  .sc-iivantB,- —  on';   sen/-an-G  who   injures  "oy  his 
tortious   aj  L   a  felljv  sorv^^it   is  liable   to  him,    as 
a.:)^^  one   to    a  p?i"3n;i  he  hurts.     Halo   §   ?4. 
EiaT)loy3r  and   independent   conf,ro,ctor<, 
1,        Liability   y£  oii.ployer. 

(a)        Grone^al   vulX-::    T'le      employer,    or  person  sim- 
ply  contr.o-ctxn^   foi    a  certa\n   result,    leaving 
the  control  of   t;j.e  rie'p^is  to   anothor   as   an  in- 
dependent  coiitro-ctor^    is   not   liable   to   third 
parties   cr    to   such  oontractox*s   servants  for 
t".\e  w>onj,ful   or  nejlijcnt   acts   ex"   such  inae- 
pondent   c^ntracto:    or   of  j.iis    EOi'Viiiits. 
^^'    ^-'"'•^^.jtions  . 

■     (-)       "Result, --if   the   result   of   carefully 

cariyir^-   out   the   contract  by   the   indepen- 
dent  contractor   is   to    injure   a  tlird 
party,    the   e;  .ployer  is   liable^   because   it 
is   done   for  h.ija  by  his   orders.      Cooley, 
R4F. ., 
(2)        Ob--iou3ly  drqi^erous, —   If    tne   thing   con- 
trasted  for  :s   cbvior.sl/  dangerous,    a 
f-'llure   to    see  that  proper  prec--utiors 
ai  3  taLcen  to   prevent  da/iago,.    leaves   the 
employer  IJable.    Cooley  346.. 


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.....  " — ^^-•-  ■•  ■^, -•_         .-^  :.-,?.',§.,^\t^-^'mii: 

,    !  ,.  ..  •     >-•■■-■   •      ,  ■'■■      ;■  •      '  •  ■  .-,  f,      -.■' 

, '-i  r-..-o -■  ■j^-,  -'■  ■•    ■"■■>-     ;•■     ■•'■-■•  ;      ..^ 


,>• 


■  . ,, ,  .  .  ,    .  -.  •    ■     •  ,.  \  .;i  .;^-':io 


,   .         .  ,     .    ■'J   ij-«  'frr  . 


3-^1? 


■'*  1^  '•■    '-^  ..„....•■  -^ 

.';t^.r  ^;o  [ .  ■  n ■  vif d'5'^j:  -lexo jfi^  ;c 


C   0   0  L  3  Y      0  'J      T   0  xR   '^  S.  21. 


(3)  Incc' ir^Gt ont   contr:^ctor, --an   employer   is 
liablG        ir  l.e  ne^ll:jently  eiaploys   eua 
inco.ipetent   contractor,    for  damage   n- 
sultiiij   t^iereirorao      Cooley  346  « 

(4)  ?ef^son?l  re  ^lect,   of   employer  coi.ibinin«j 
witli  tliat   of   tlie   contractor,    leaves   tho 
lorraer  liable   also.      Cooley  fi46  . 

(5)  Interference   in  rnai  i  %•  en  e  n  t ,  -  -  i  f   ei:iployer 
personally   interferes  with  contractor'  s 
worlonen  by  directing   tlienij,    and  t.iey  obey 
his   orders,    or   if  he   assuiies   and   exer- 
cises  control,   he  becoLies   liable. 

Ealo   §  6  ?  . 

(s)       ^_uis_ancs,— -Keeping,    or   allowin;^   a  nuis- 
ance  created   or  left  by   an  independent 
contractor,    on  employee's  preiaises,    re- 
i'Li'Ltinj   m  dawage  to   another  party,   makes 
such  employer  liable «      Cooley,    ^46. 

(?)       Unlawful   acts,— An  employer  cannot   es- 
c  -^pe   li.;Lbilixy  by  liirinj   ea\  independent 
contractor  to   0  0^:3  lit  unlawful   acts   for 
him=      hale   §   63. 

(8)        Stjotutory  duties,- — neither   can  one  upon 
wjioii  thore  rests   a  sta.tutory  duty   escape 
liability  by  intrustin,;   its  perfon.iance 
to   8X1  independent   contractor  who   fails, 
halo   -^68  = 
Liability   of   the   independent   contractor: 
(1)        '^0   t]alrd.  yar tios ,    end   to  his   own   servants, 

he   stn-i.ds   a-?   a  master,    a,nd   t-ie   rules   of  mas- 
ter' 3   livi   ility  apply. 
("^^       .-'^-i}^.  1   €;r,"')loyer,--he   stands   as   a  servant,    and 

the  rulea  of  the   servant' s  liabiluty  to  his 

inacter  a.pply. 


v:lo  ru   :*    i:!.B    ^^I'^-lr  ^;^i;;  o^  ? ^X-  Y/'  ..-<(*: '■'tC}'^' 

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or?;.-,  ^.eq-ri'.rti.  i-us    v.  ' 

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TORTS. 
Prof,  '^ilgus. 
COMBINATIONS  OF   PERSONS  IN  TORTIOUS  ACTS, 


I.  Most  torts  are  of  such  a  nature  that  they  may  be  com- 
mitted by  one  psrson  acting  alone,  or  by  two  or  more  acting  joint- 
ly.  It  is  said  there  are  two  exceptions: 

(a)  That  oral  slander  cajinot  be  committed  jointly, — 
but  that  the  same  words  sjjoken  at  the  same  time,  in  the  same  place, 
of  the  same  person,  to  the  same  persons,  by  two  persons  who  have 
beforehand  agreed  to  do  so,  make  not  one  joint  slande.',  but  two 
separate  slanders,  for  which  each  person  gullt>  must  be  sued  alone, 
and  not  jointly  with  the  others.   So  also  if  one  commands  another 
to  slander  a  third  person,  and  he  does  so,  the  one  commanding, 

and  the  one  speaking  the  words,  are  not  jointly,  but  only  sever-- 
ally  liable.   No  satisfactory  reason  for  this  rule  seems  to 
exist;  It  has  been  criticized,  and  it  is  believed  it  is  passing 
eway.    In  Haney  Mafg.  Coo  Vo  Perkins,  ??  Mich.,  1,  on  page  9, 
it  is  said  by  Judge  Long:   'The  defendants  were  pai'tners  in  bus- 
iness,  and  each  of  the  partners  is  an  agent  of  the  pa-^tnersLip  as 
an  entirety,  and,  if  in  the  course  of  that  business  ha  injures 
the  business  of  another  b;v  slander,  the  partnership  is  liable 
therefor,  just  as  it  might  be  for  any  other  tort  by  any  other 
agent  o" 

(b)  It  is  also  said  that  conspiracy  is  a  tort  which 
can  be  committed  only  by  more  than  one, — or  that  one  person  ca.n 
not  conspire  with  hiiiiself .   Generally,  however,  conspiring  toge- 
ther _to  do  a  wrong  is  not  a  tort,  until  the  wrong  is  so  far  done 
as  to  result  in  damage, — and  if  this  is  done  through  the  act  of  a 
single  person  he  is  liable  himself^  whether  in  fact  he  conspired 
with  other  or  not.   In  other  words,  the  conspiracy  is  not  a  tort, 
b^^t  if  it  eJ;.i:^ts,  only  an   aggravation  of  the  wrongfxil  act,  and 
which  if  prcvedj,  allows  others  to  be  held  liable,  increases  the 
area  of  available  evidence,  and  furnishes  a  basis  for  exemplary 
dsunagese 

II.  With  these  exceptions j  torts  may  be  either  several  or 
joint,  according  to  circtunstancos ;  which  they  are,  is  some- 
times difficuLlt  to  tell. 


yvi  n'-^oafisR  'fio  .i:^oaTATnft-;-oo ' 


t^  ..  ...'J-   .! :    ti9/rix:t'    -j ::.;..  ,,.-iM'.;.v-:^..i  .  -..is;;.*';:  •   iijofc: 

..,.  -jfi    .  •.eoijis^  .^aicr_  ,  :      ..^    ■,.  :'r   .fvaf-Tju.    .     .    .  j'::o't-.  .. 

!,:>.-■  ■■      -yxSii      '.I    J-c;;;;^;    -c^-t^iJ^     --       ■•■i  ■    ■'■'  T^' -^    ^\:-lvbiiS^..  .    .     -  "  -crci'): 

"'ievf:c.     ,  ito   jmf   ^-icJ^^ir/o;    d-on   cij?    ^s.btov/  o;iJ-  :^-ni:ii>oq8   eno   nAi   ::..^.: 

"2i'o   riJ;    .aenj-^jBCT  e-icv;   '.lii     .  ■■rezpi    o..:'i"         ::\nw.X  Oi^bi/X  vrf  jjin;:;    ex   ^"  •: 

■jS"    '.:.      ;-u    v^:i^r:x3i;a   ?v    .       ■.    &3-r;,:oo   sic?'   n.:   "i ":    ^hiiB    ^x,i-s-i.i^i:Q  r:s 
-?  ...    -i   '•x.:.r"X6r\v '::.;.  r   ei.:'    » ■j:Gi)r.,i.I-.;     '  "^   ^o^fJ  o;i:=    Zo    Uri^-iJii^jd    -yci^ 

'•ojju'-.iE. 
.■oiilw  J-i;i,'  s   v^  f:   ^;2i^iifc^?i?j^;■■:  :^ -v-s^xii  ■  1.  ■■.:■•      ;"^:\£i::;   5-;i:   i"      (J) 

■       ■  V  ^■    ^'.■.:  .    xl   Mt^.;-:  ec     :t  .:::i  =  x--:    .;•  .:;;\-vpI.lB._ ,  j.v;:, esc    ^-^  x  ^irft^ 
-:  ■        .    :■    i-.t-  .■.£.!  irv:':   .j;;x>  .,.  uofift.cxve   i;ii;x;X.*£  .v.'  .lo'tj  ;-ji; 


TORTS. 


(A).   A  joint  liat>ility  may  arise; 

(1)  I'TOE".  a  combination  of  proximate  wrongfxil  acta 
into   one  Mrrongrul  cause  of  the  damage. 

(2)  From  a  community     or  privity  of  interest  in 
the  property  vr  thing  causing  ths  damage o 

(3)  From  certai.n  relationships <> 

Under  the  first  of  ya^ss  aroo 

(s.)     Conc/ji.ct  of  J^ti^^:*""^'^^^®  *"*'°  °'^'  more  voluntariiy  en- 
engage  in  th^   Banns  -Krat^Xnl  act» 

(is)    ^9.S£}i^XlVi3S  ^2iH£!!ii  JiLii;*   regxi].t.irig  in  one  proximate 
caust  of  an  :^,rijury.   like  a  collision  of  traine  a.*!;  a  crossing  of 
two  s^.ilroadSj  6.vlb  to  the  negligence  of  th-&  servants  of  both 
roads  0 

^^^     jtnduciiTg  Y0j.untary  Ts^ongfijj.  acts  of  others,   arjd  using 
them  as  instnjm&nt£".  of  wrong-d.oing..  whether  intentionally j,   re.'ahly 
or  nsgligently^   and  whethoi'  the  wi*ongful  act  induced  is  inten- 
tiona;].^   rash,   or  n^slis^nt,  makes  the  parties   joint  tort-feasors* 

*  The  ml©  as  to    (ah    (b)^   and   (c),   is   sometimes   statods 
"SevereO.  persons   ac^ting  independently .»  but  csaalng  together  a 
single  injury  are   joint-tort-f  sasors^   and  may  be  sued  sither 
jointly  or  severallvo"        15  Am»  &  Engo  Snco  Prac .  p.   558o 

*Anoth9r  statement  of  ths  rule  ia%  "Thare  is  a  class  of  cases  in 
which  defendants  are  jointly  and  seTerally  liable^  although  thsy 
are  severa?.  and  not  joint~tort~f easorsp  As  vjhsn  there  is  no 

concert  of  action  or  unity  cf  poxpo^c^  but  tho  acts  «ire  concurrent 
as  to  place  &nd  tLne,    and  unite  in  settirg  in  operation  a  single 
destructive  and  dangerous  force  which  psx>duc©s  the  injuryc"-- - 
Valparaiso  t»  Moffitt,   12  Ind.   App<.   250.,    54  Amo    Stc   Pwo,    5'32 ; 
Slater  To  Merserson^   64  No  Y,,    138* 

♦Another  says  that  in  ordor  that     ''a  union  of  \Trong  doers  in  one 
action  ahould  b©  possible,   there  -oust  be   scms   c-cmffiJirJ.ty  in  the 
^rrong  doing  emong  the  partisa  who  are  to  be  united  2^   co-defend-- 
a^its;     tha  injury  in  some  sima^  maet  be  their  joint  work*" 
Pomsroy' s    .Esmo  &•,  Reaio  BightM,      §308. 

*  Under  thio  comes  also   the   EUle  that   "persons  '.vhose  separate  and 
distinct  a;;ts   culminate   in  producing   a  public   nuisance  vrhich  does 
apsecrlal  damsge  to   a  person,   are   jointly  and  soTsrally  liable." 

Under  the  second  of  the  a-bove  ares 

(a)  Joint  ov/ners  of  property.. 

(b)  Landlord  and  tenants 

(c)  Partners  o 


....  J. 


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So  TORTS.  S. 


The  general  rule  hsrs  is  tliat  tliose  who   st8.nd  in  auch  a  rels." 
tion  to   property  as  to  be   chai-ged  with  the   du'^j''  of  prev&nting  it 
doing  damage^    are  .joinfJ^y  3.iable  tor  ths  d8cnag*5  it  do©s°s     ^^^  i""^ 
is  said  further,   that  in  the  ce.s©  of  joint-tonants  th®y  are  onj^- 
jointly.,   and  not   severaJ.Xjr,,   liable o        In.  th©  case  of   (b)j8  the 
liability  arises  generally  out  of  a  n\il30zicep  or  from  dangerous 
premiBeso       As  to    (c)   s-aide  fj-om  ths  control  cff  property  alone, 
the  joint  liability  arioQS  mainly  from  th©  relation  of  agency 
existing   ajtong  ths  partners o     See^  Bishop  Vo  I!ly^   9  Johns    (N,Y„) 
294;     ."fdandsr  Vo  McG-rath.,   35  Pa.  Ste   lc.3 ;  Mor^ton  Vo  B'-sldeni, 
10  Eo   Go  Lo   316;  Darey  y.   Chamberlain^  4     Espc  N.  P.   ^'29;     Mil- 
ford  Vo  Ho  lb  rook,,   9  -Allen    (i^assa)   i;-'^:   85  Amo  Bsg  o   73  5  o 

Undwr  the  Jhlrd  aboTa  are, 

(a)  Husband  and  wif©e 

(b)  Master  and  s«>rvant^   or  principal  and  agent, 

(c)  Partners. 

Ths  law  held  that  the  tort  of  the  wife^,   or  th€;  senrant  in 
performing  his  service,o   or  the  agent  in  ©xeouting  his   i^Quncyj,   or 
th®  par'tner  in  carrying  on  a  partnership  business,  was   the  tort 
not  oa\y  of  that  ptrirson;,  but  th©   .joint  tort,  of  the  principal  in 
tho  relation^^-'io   e..   the  husbartd,  mastarj,  principal j,   or  fim,-— 
and  they  might  bs  joined. 

In  tha  ca,ses  of   (b)    and   (c)    it  is  said  there  were  two  exca-p-^ 
tionfcis      They  were  not  jointly  liable  if  the  acts  were  such  that 
the  fomis  _of  act2.ori  a-jainst  the  parti'sa  must  be  different;  eo  g. 
if  tho  form  of  action  against  the  servant  raust  bs  _tresoa^i»   and 
the  act  against  the  principal  nrast  be  5,^.3^,.   then  they  coiAld  not 
b9  join©d»       Or  if  the  ser^antB  or  agant-s  act  was  a  mere  non- 
feasance,  or  failure  to  pt-rform  his  duty  of  faithfulness  to  his 
principal,    and  was   not   n^gligenceo   misf srisa.nca  or  malfsfisance 
toward  the  person  hurt,   the  s-.erTant  was  not  a  tort~>fea,sor  at  all.v 
ar.d  so  covld  not  be  join^jd  with  the  master. 

(B).  A  joint  liability  doss  not  arise  whan  the  persons 
act  sfS'7ar^.'}..y»  and  independently,    each  causing  a 

separate   and  distinct   injuxy,    even  though  aJTterward  tho   conse- 
qu&ncea  iinite  in  such  a.  ws^y  as  to  ma]£e  it  difficult  or  impossible 
to   apportion  tiiem;     such  xseraons  cannot  be  sued  jointly,  but  must 
be  sued  s eve rally 0 

IIIo  Joint  ta.rl  feasors  as  e.xpl3-ine<i  in  A.   above  are  jointlj^ 
or  gevorallyj,— ona   or  more,   or  any  part^,   or  all  of  theui  liable 
for  the  Y/hols  daia-j/^/i. . 


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:5^^  e*?!.! 


T   0  R  T   b.  4. 


IV.     Ajnons  joint«=feasor3  who  are  intentionally  or  negligently- 
wrong -do«rSj — one  of  whom  has  paid  for  the  damage  by  all,   there 
can  be  no  contribution  enforced  through  the  courts^ 

V=       Contribution  is   allowed,   and  may  be  enforced,  when  one 
joint"tort  feasor  has  paid  all  the  daiiiage  resulting  from  acts  done 
by  several  in  good  faith  in  an  attempt  to   enforce  what  were  con- 
sidered justifiable  claims,   or  when  the  parfciea  are  charged  onj^ 
constructively  as  wrong -^oerOj   or  when  tjs  between  th©  parties 
themselves  they  cannot  be  considered  as  wrong -doers. 

VI.     Tnd«mnity  is   allowed  when  ono  has  without  fault  upon 
his  liojrts  been  held  constructively  for  the  tort  of  another^,   or  has 
been  induced  innocently  to  act  in  such  a  way  ab  to  invade  anotherGs 
rightj,  for  which  h©  has  had  to  pay. 


PRQBLEIMS  AS  TO  :rOINT  TORT-FEASORS. 


r.       Dl^  T}2,   and  DSf   owned  in  severalty   thrss  lots  adjoining; 
on  eash  lot  was  a  brick  store  with  brick  partition  wallSj,   and  a 
continuous  front  wall  next  to   the  side  waJ.k<,       All  the  three 
stores  were  destroyed  by  fire^  but  the  front  wall  was  left  standi 
ingo        It  was  known  to  be  da.ngerous.,   and  finally  fell  on  P.   an.d 
hurt  him.       The  part  of  the  wall  opposite  the  lot  of  Dl,  did  the 
injury  to  P.  who   sued  them  jointly.       Ware  they  all  liable  to  Ptfj^c/O^. 
Why?  ia.^9t,.a^.3/f    —   /Sf/,  ^ 

2.  Dl,   and  D2  together  assault  P«  who  sues  them  jointly » 
The  jury  found  both  ^ailty,   and  assess  the  damages  against  Dl 

at  Sl25*    and  against  L2  at   50  cents,   and  judgment  for  these  amounts 
wa^  given  accordinglyo       They,   the  defendants,  brought  error? 
Should  the  judgment  be  rev©rsed7-wX4Wby?  „ 

3.  Dl  and  1)2  enter  P*3  land  and  pull  down  his  shop,  with" 
out  authority.       Po   sues  them  jointly.       The  jury  find  both  guilty 
a^d  assess  the  damages   against  Dl  at  $?5cOO  aid   against  D2   at 
$2o00.       Po    electa  to  take  judgment  for  ^7ooOO  against  both  and 
remits  the  smaller  amount  against  D2o       Judgment  is  rendered 
against  both  for  3?5oOO,    ajid  Dl   and  D2  claJ.m  this  was  error..      vVas 


^ 


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TORTS. 


4o       Bl  arid  D2  tog^tlaor  assault  Pc  tcIio  su«s  them  jointly c 
TI18   jury  awaj.d  Po   .^-?C>0  daras/res   arid  as?jes3  the   shsre  of  Dl  at  ^150^ 
and  that   of  J)2   at   ^J550c,        I'»   renitss   th:-?   share  of  :01^   end  diamisaes 
the  action  as   to  himo       I)Z  objectod  to   the-  ve?d.ict  ^hi:n  rend.6redj, 
snd  asked  thfi,t  it  be  bq\.  aside  and  a  ne"^  trial  grar.\t©do       The 
Coxxvt  did  thisp   and  then  P.    appoaitJ-i   cl»J.ming  th&  lower  Court 
erred  in  sotting-  a^idy  ths  To^^.ieto       Was  tb.srfi  <irrosr?i«*^.'kVhy? 

.S       DI  and  B2  are  neighbo^-S;,   and  coth  own  dogs  isnovm  to  w^    m«^; 
lii^j.y  to  idJ.l  Pheopo       The  dogs  g<3t  tcsethor  ons  r\i^h.t  nxid.  tcga^^"*^ 
th>v-"vill  t^n  of  P^u  sheep.       P#  ou.-s  LI  ai^l  D2  jointiijo       Ara    I'/^^^^f**' 
thr--    30  liehlfi^VW.Why'J     JJ.rT,   z  e<n^-^  2-0 <•-/•/ 7  /Jt^*' 

3  c       "01  snd  DS  are  railroad  c{jmpa.nisso       P<.   is  a  ps-^songer  on 
t.ha  railrocvi  of  Die       A  ccllission  occurred  duo  to  the  ne(Tli/;^eri,cs 
of  the  servants  of  both  Di  and  D2.p  which  injures  Po^  who   susii  ths^m 
/iountlyo       r<2  moves  to  dianiiss  as  to  itself';  this  was  de-nisd.,   e.ad 
■."lo  5ou;i'^>  cherpred  that  rtcoverjf'  coiild  he  heAi  against  botho       Was. 
x.'-:±3  error'/  rw^jl  6   iO>-A<U.t^wi^;/i).ou?^(>t,.     \^ .  )   i  €  1^     ~  ^  ^  STy 

7o       Pc  wa.3  ttrrestad  by  an  officer  on  n:ln©  wi-its   In  favor  of 
Do    ind  eight  othsr  crsditoro;     thay  wer©  all  ijsrvfed  at  th©  .sane 
ticivi^  by  the  t:m*s  arrsst     of  P«       He  vas  confined  in  jail  for  more 
tJ-ian  a  ycjar^  '^ra^n  ha  was  diacharg&vl  on  e,  habeas  corpus  for  defects 
in  the  ai^fidarits  ujron  which  the  vfifits  were  iasxie^o       De  offn^red 
to  prove  that   tb'?  ochar  creditors  had  :?iven  up  thsir    claims   a^jainst 
Pc    in  consideration  of  him  not   suing          then  for  falst?   2jnprison'=' 
ro'-nte        This  wa-^                    -isxcr'.uded;,    a  venliot  v?as  girsn  for  yJ'^j. 
;v(,i;i  :d»   excft-pt8d->       Was  the* re  errori  Ma«Whv?  .  ,  ^ /i^'SL 

80       Dl..  r2p  j:)3;,    and  ^4  war©  the   eymars   of  mines   alon^ 

t-:.  stream  supplying  F*3  artlle       Refuse  from  the  mlnss  of  ea,ch  are 
thro'oTi.  into   tho  ^Xf^-BA^s  uariiil  it   accurivilf^tss  to   Bueh  an  ortent   in 
%)}Si  bottom  of  the   3tr«?ar.  at  the  da-rr.  of  Po   at   the  mllli,    as  to  raaVce 
:it  -aselesso        Pn    auea  D.X  for  th-s  v/hoi©  da;m?*g;<^f   and  th'^  court  I'Slow 
cha.rr-jed  the  Jur^'  that  Di  cou.ld  ba  so  hx-;ldc-        V/a.s  th^^re  error*'  'H-«-^ 

9o       Dlj;  1)2 J,    ano  .03   are  farmers  through  wloose  fasray  a  att^eaai 
o.i!'  water  flows  ;     thoy  frcting   separately »  maintain  ditches  wherthy 
th«  -^va.ter  from  their  faxma   in  collected,  in  la.rge  a.nd  unnatural 
quantttiSQ;,   aonrl  diff-asTint  from  the  natural  flow  is  turned  into 
tho   stream  in  r.uch  a.  marmer  a:7d   amount   aa   to  daonage  Po    a  low.^r 
land  ovmero       He  s-ues   them  jointly.        Are   thuy  liable'^  )^yfjTy? 


>'!  ■  J. 


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ill  .i5*V'-"'~"'>' 


TORTS. 


10 o     Pc   glilp3  his  goods  on  B*3  ;ib.ip  and  tliroiigli  the  n®glxgeTio«s 
of    thu  capta,.ln3  of  3*s   KMp  and  of  D®  s     s'Mp   there  is   a  collisio:).^ 
TTher^'hy  V is  gocd3   ar€)  Icst^       Po   eiies  l)o,,  who  plsads  in  abaterii^rrt 
tJiat  ths  dseuisg^  vras  causod  by  the  jcint  •a«gl.',g!!sr:0i3  ._  of 

Eo   esid.  .Do       To  this  plea  To  demurred o       ShoxU.d  tha  derourrer  be 
sustainiiid  vz-  o-5-erru.J.ed?       Whyt        _  ^  ^        ^^>  . »  .  / 

11  o     P»  wa^j  rildin.:^  on  ths  rrtrs^t  car  of  Bo   Conrpfir^"^   and  w.?s 
InjuE^.  by  a  colllision  of  th&  car  with  a  car  of  "J)o  Coo^  ths  cci" 
lision  being  duij  to  the  nSj^.Tils^nci?'  of  thy  PGriraat^  of  both  ccffi'-^ 
pe..Tiif'!3c.       X-'o   B*a?^a  bctho       Is  he  ©ntitl^d  to  jiJdgirasnt  .gainst 
outhi        Sv^ppos-sj  h9  rel':-a5?^'3  all  cljulm  against  .B=   Gompdny  f*/r  a 
eori-'id-jration  paid  to  him  by  that  Coraparxy*-      WLiat  effect  if  aixi" 
doss  that  hav^6  upon  .T>'k  liability?       Why?  _  j^- 0^^.-^         la^ 

IJio     Supxiose  that  in  Koo   11^   the  collision  was  due  wb/:aiy 
to  th^  n®gligenc3  of  X^  B'o  Motor--msjnj,   a^d  Y,  I^' s  iiotor-mano 
■^i.at  would  h^..  P's  rights  again;;:;t  .Bo^  :0o.o^   g&ilT^'?       If  jt>ig<« 
yr^ant  was  obtained  against  ^B<>   PJad  Pit  id.  by  Bo  what  wouJ.d  be  th© 
rishts  of  Eo   Coc    against  B,,   or  X.  or  Y.?       ^Vhy■?       Ot  :?f  Po  ob- 
taiaed  judgment  agairxat  XopWho  paid  it^s  -^hat  ?/ould  be  Z«  r.  r-^ghts 


Lf 


of  repair  whan  :D2  toolc  po.snession/,   a.nd  hs  allowed  it  to   so  con 
tinue  in  a  dcvriijoryus  conditicn^,   so  that  Po,  while  careful  hiii'is?! 
fnd  i;aK'fuJ.lly  upon  the  wharf  '^as  seriously   inju-red  by  falling  lihr-^ 
c..lg;h.  Ito       Er*  .^uod  L2  for  th*  injury .9   and  bsfor®  h.v:  obtaJ.ned  JuJg<= 
iiiftnt  againsjt  r-c.*  hfi  brings  snothes"  suit  for  the  ssm©  injury  s/jainst 
PI- ,,  ^/bo  p:i.eo.ds   th'?y  pe'.-i.uni.;y  of  ths   suit   againat  .02^    in  abatsii:-,-nt 
cx   thy  action  sgainst  hiir.sslf  o       ?o  demuso  to  this  plea«        Should 
th'-^^f  dgaxr-rryri  be  austa^ned  or  orerruled?    ^  VJhy? 


^  austa^neo.  or  orerruieaY    ^  Vijay? 

i4o     Dl  and  LS^   an^i  Xo,,  Yo.,.   and  Zo^  wsr@  joint  tenants  i:n  the 
./■«rr.'@rship  of  a  pisc^  of  Is.ni^  upon  which  they  i:ieintairAi>d  a  mill- 
deal  acrofiK   s.  rivsr,  vidch  had  the  ©ffsct  of  thrcwijag  back  ths 
wcitci-  xxi^tn.  ths  land  of  Po   to  bia  damage i>  and  for  which  he  sued 
IDl  and  xi2s,  who  pleaded  in  abatement;,   for  the  non  joinder  of  ths> 
othdr  joint   tenants 0        Po   ohjevtyd  to  ths   r-ufficien.-^y  of  the  plesu 
but  ths  j.owes"  court  gave  judgment  for  Dl  and  D2«       Was  this 

15.     Diop  D2o^  DSo.,   and  D4e  were  proprietsrs  of  a  sta^s- 
co?ich  for  the  convsyanrje  of  passengers  from  Bo  to  Co;     they 
received  Po  as  a  pasasnger  bet^sen  these  plaicesj   for  a  fixed  sum.. 


/, 


■^■.m'^^L 


€  il:: 


■*.\" .    ■,  i. 


vr,-«i'V;![.:«:{v:;.i;  :.  r^.:i,:.w:oo..t 


.,xv:ri;.l;; 


3,  TORTS. 


tv;  "be  carried  sajfelyo       P's  doclaratloa  allegod   that  the  d©fen~ 
dc'.nts  conducted  themsolves  so  negligfently  in  tlie  performance  of 
this   ss>i'TJ.c:e^   through  their  seivants^    that  the  coach  was  upset 
and  Po  hurtc       At  the  trial  DI  and  D2  were  iound  not     guilty,    and 
Do   and  D4  were  fo^ind  guilty.,   and  the  damages  .Qga^JJsttham  fixed^ 
at   .'^^250i,  for  which  judjmwnt,  wa,s  p;lTS>n»        V7c«-?   thi.3  ©rrorT^    Why?  c^,~f'^*^ 

16 o     Po  hrcjsght  an  action  of  trespass  againat  D.   for  hreak- 
irjg  into  hi«  houssc       Dc   onaw^r^d;,    admitting  the  trespasSi,  "but 
ststing  further  that  the   saiTie  had  hean  committed  Jointly  ty  him^- 
^•;!lf   and  one  Me,   and  that  afterward.,  Po   in  writing  roleasfid  Mo 
fiOm  a,cticns  of  any  kind  whatever  for  this  trespass.       To  this 
&.nswer  Po  d?^:ni>rrcd.o        Should  the  demurrer  be  sustained  or  ov6r« 

17 «     Po   sued  1>«   in  trespaijs  for  entering  his  house  arid  carry-" 
ii'jg   away  his  goods.        Do   pleaied  that   the  trespass  was   conmitted 
by  himself  and  So,    and  that  Pc   haxi  sued  So^,   obtained   judgment 
against  him,   and  S     had  paid    this  .judgirsnt«        Po   demurred. 
Should  the  demurrer  be  sustained  or  oyerruled?       \7hyV 

18 o     Po   su«d  Do   and  five  othsr  persT'  ns  in  separate  suits  for 
a  Joint  trespass^ --'Do  being  the  prin.!;ipal  actor.?   and  the  others 
hi£  ijervantso       Before  tr:".  a."L  .Vn  either  of  the  cases,   the  attorneys 
on   both  sides  agreevi  that  Es   should  be  considered  liable  for  the 
v/hole  trespass,    mid   in  case   a  verdict  v/as  rendered   against  Do   for 
the  vrhole  damage,    and  the   Court  sliould  be  of   the  opinion  that  Po 
would  be  entitled  to  his  costs  in  the  other  cases^   then  these 
coats   3houl.d  be  paid  by  them  respectively,   othej*wis9  noto        Judg- 
ment was  had.  against  Do   for  the  whole  amoujitj,    orA  was  f-.-lly  paido 
Th3  ilsbility  of  the   other  defendants   for  costs  ws^   then  submitted 
to  the  court'.       For  whom  should   the  decision  be?*^    'vVhy? 

19o     P:;   auad  Do   in  detinue  for  a  pianao       D«  pleaded  that  the 
a-ct   complaJn«i  of  was   the   joint   act   of  himself  and  T*,    and  tbat 
P«   had  recovered  a  judjment  against  T.    in  an   action  against  To 
for  the  ■s'csiie  piajio,    ajid  that   the   judgment  was   still  in  forceo        P* 
rtjp.l.ied  tlaat  the   jud{:?i:«nt  was  unsatisfisd;.        Do   demurred  to   the 
rv.v.licationc        Should   the  d-;:n;j.vr;^r  be   sustained  or  overruled? 

50c     Dl  sued  0.^.    and   in  this   suit,  D2,    the   sheriff,   attached 
certain  property  sapr.-osed  to  belong  to   Oo  3bc     Po,   however,    claimed 
that   t?:.e  property  b^>longed  to  him,  whereupon  D2,    the   sheriff,    re= 
fa-v^.d  to  pr-ocsed.  further  with  the  attachment,  unle-.s  Dl  would 


./.■;  ■-:  y-  o 


',  1  '■ 

.4  '.•     ( 


^    r-  IV-'Y   .i    ■ 


:j;t''it 


,-r-,  ■^-•'!:<'i-'-. 


■■'^•■-"  ■+sn  ^, 


^  -r"r  (-»  +  ■'•  •-• 


.1,  ■  + 


Oraj^V  Ij 


wl  j:. 


!-■  :  't  '• 


.■  -n-..:-i 


3.  TORTS.  80 


give  him  a  bond  of  indemnity «        This  v/as  done,    and  D2   sold  the 
propertyo        P«   then  sued  D^s,       He  gave  Dl  notice,    and  Dl  conduct- 
ed   the  defense.        Judf^rnent  was   rendered   against  D2  for  P«   for 
$6233,    ajid  D2   icunediately  paid  :;j830  thereouo        P.   then   sued  Dl, 
and  the   court  gave  judgment  for  the   sqms   amount  as  before  less 
the  .^830  paid  by  D2»        Dl  claiiied  this  was   error  because;, 

(1)  by  giving  bond  he  did  not  become   a  joint   trespasser  with  D2 ; 

(2)  P.   had  barred  himself  from  suir^g  Dl,  by  suing  D2,   getting 
judgment   and  partial  satisfaction  from  him;   and   (3)   the  judgment 
against  D2  was  not  conclusive  against  Dl«       Was  there  error?  9tar. 

2I0     P.    sued  Do   in  trespass,   and  it  appeared  from  the   record 
that  he  had  also  bro'oght   suit,    and   recovered   judgment  against  Q. 
for  the  same  trespass,   in  a  separate   action,  but  that  he  had  never 
tal:en  cut  execution  upon  this  judgment o       D.  however j.   alleged 
"that  since  the  bringing  of  the  action  in  this  case  P»  had  re- 
ceived full  satisfaction,  by  a  judgment  against  Q,«*    a  joint  tre3<» 
passer,  which  judgment  had  been  satisfied  in  full  by 
payment  of  the  amount  of  the  judgment  and  costs  to  the  clerk  of 
the  court  in  open  court o"       P*  demurred j,  but  the  court  overruled 
the  demurrer 8       Was  this  orror2u4i/«:.Vl:iy«  .^  ^  ,^j---^ 

22 »     P*   sued  D<=   in  an  action  of  trespass  for  damages  in  cut- 
ting and  carrying  away  logs,   found  by  the  jury  to  be  of  the  value 
or?   :^.1000.        The  facts   showed  that  the  trespass  had  been  conmitted 
jointly  by  Cs   and  Do*   and  that   afterward  P<.    entered   into  an  agree- 
ment with  C,   that   in  consideration  of   Cls  paying  $2005^  P.-   would 
not  sue   Ce  for  the  trespass*,  that  it  was  not  understood  that  the 
^200  compensated  Po   for  the  trespass,   or  for  the  timber,  but  simply 
that  for  that  auoi  paid  by  C»,  P.-  would  look  to  other  parties  for 
the  balance;  that  the  damages  had  not   then  been  ascertained;  that 
Ce   had  paid   the  amount,    and  that   it  was  fully  understood  between 
thsm  that  P..   intended  to   look  to  others  for  the  balance.        On 
these  facts   the  court  gave   judgment   to  Po    against  Dc      for  $1000 
less  ^200  paid  by  c<.       D.   appeals  claiming  ftrrtiTf  on  the  ground 
that  the   receipt   of  $200  frcm  C.    and  his   release,   released  D. 
Was  this  error? /v/».V/hy?  ,•         ,1%    ■ /  9  ^  ^^ 

23o     Dl»,  D2.,    end  D3.p  who  live  in  different  ttounties- 
jointly  commit  a  trespass   against  P.  who   sues  them  separately  in 
the  coimties  of  their  respective  residences;     the  cases   are  tried 
by  st>parate  jxirlse,    and  judgments  givt^n  as  follows?      -'^gainst  Dlo^ 
?5yOO;   against  D2o,   fjQOO;   against  D?.',!.   |1000o        Suppose  Po  believes 


■'■!«t£< 


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■^  w^  ^   ^  Si*-  •    —  s.   ■ 


.—  ^■K^y'T' 


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3.  TORTS.  9» 


that       D3.    is   &.hle  to   pa^y.   lie   t.akes   out   execution  against  him, 
;md   'jets  only  '^500,        -/^hat  r.iay  ho  do   as   to  the   other  jud^merAts? 

Or  again;,    suppose  that  Po  heD.ieves       Zi\»   is   the  only  defen-- 
dant  that  is   able  to  ~jb^  in  full,    ajid  he  accordingly  takaa  out 
ftxeoution  against  him,  hut   is   able  to  get   only  *p400  from  h±6i» 
What  m^  he  do  furthQi"  as  to  the  other   -"udgnents*       Why? 

24 0     Dlo^  D2..  .0   and  D3o^    are   indi-vidual  and  separato  creditors 
ox   Xo        They   separately  on  the  same  day,    acting  upon  the   sane  ad- 
vice, but  not   in  concert ^    sue  out  writs  of  attachment  against  Xo, 
upon  property  which  they  have  reasonable  grounds  for  believing 
has   been  conveyed  \)y  X.   to  P«    in  order  to  defi'aud  his  creditors o 
Thf)3e  writs   are   all  put   in  the  hands   of  Sc    the  ah6r3.fr.c  who^,    after 
talving   separate   indemnity  bonds   from  "Dl.c  D2*,    and  D3.,   proces>ci.s 
to  levy  tha  writs   at   the  samy  tiirnpt5   t^e  the  pr^operty^   sell  it, 
and  pay  the  debt  of  Die    s^200,   the  debt   of  D2.,   ^300,    aaid  of  D3., 
■l-iOO..        P.  who  had  purchased  from  Xoj,    sues  DSo  upon  the   indemnity 
bond  given  to   the   sheriff,,    and  sets   judgment   against  hlm^   which  he 
pays   in  f\ill.       D3c    then  sues  Die    and  D2^    for  contribution«      Is 
h^j   entitled  to   such?  ,u/»If   so   to  what    ftr.tont?  ^j  Why? 
Y.  V  'P.   /o*7  }At<^.  «-V7    -  /l^  Y 

25.     D.    is  B'' s      agent.       Se      alaims   titls  to  certain  J.aiid   of 
which  P.  ha^  taken  possossiono        So   far  as  Do    iciows  B's   claim  is 
mad.e  in  good  fa.ltho       Be   directs  Do    to  briiig   suit  to  have  P<. 
ousted;     Do   does  this  in  a  court  which  givss   judgment  for  B.,   and 
Po   is  rei^ioved  accordinglyo        It  then  turns  out  that  the  court 
ordering  the   ranoval  had  no   jurisdiction  in  such  cases.        P.   then 
suc^d  .D»    axid  Bo    jointly j,    ajid  gets   judgment,   which  Do   pays   in  full« 
l-'o   then  sues  B=   for  the  amount  paid  i^       Can  he  recover?  ^i^. '/by?. 

26 o     Po   is;   a  t'jrnpilre   company;     Do    a  inJ.lling  company'' <,        Da 
without  cciic-ont  of   P.    enters   upon  the   tuj-npike   of  P*    and  digs   a 
deep  ditchji  which  i)<.   negligently  loaves   open  and  unguarded,    so 
that  Ce   in  the  exercise  cf  due  car©  is  inj\ir©d  by  failing  in  ito 
0^    •"lUes  Po   ard  gota   .judgiiiGnt,  which  P-.   pays   in  f\iil.        Then  Po 
r.-v.ee  D»   for  thy  sum  paid.        Can  he  recover?       Why?  _^ 

27 o     Dlo    and  D2o  were  counties  upon  which  was  by  stat^ite 
jilaced  tho  duty     of  keeping  bridges   in  repair^   and  makirig  them 
.15.Liblo  to  persons  hurt  through  their  negligence   in  this  partic- 
ularo       P»  was  hurt  by  breaJding  do'.vn  of   a  bridge  across  a  river 
on  the  county  line,   ';\'hich  bridge   it  was   the  joint  duty  of  Dlo    and 
L2»   to  teap  in  repair o        8om3  ttrae  before   the  commissioners  of 


nujc'>. 


:;^f    .Y^7^-;.' 


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■ziir^^hct^^T-  '^''^'^  '^^'^  xo  >^.;:  ■■:-:'■  ^^^''^^ 


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■■"■'■■■  ..O':^.-^    :.^^  --''^■•^.■.. 

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TORTS.  10, 


"botii  counties  had  examined   the  "bridge   axid   ordered  some   slight   re~ 
pairs,   "but  owing  to    error   .    of   judgment   these  were   insuff iciento 
P-    sued  Die— ^ot   jiadgr.ent  for  ^1100^  which  Dl-    paid  in  full,    ajad 
then'Dl.    sued  D2.   for  contribution »        The  court  "below  non~suitod 
Dlo    <:n  the  ground  th.at   there   could  "be  no   con"cri"butiono       V/as  this 


error'iJfijA'^.Vhy  4 


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TORTS.  1. 

Prof.  Wil^^us. 
Persons  Afxected  "by  Torts . 

General.  Rule ■      There   is   riO   liinit,   aerely  or   account  of 
personal   caijacitj',    either  to  liability,   or  to  right  to   recover  for 
torts. 

The^oi'y   cf  t?'_H  l£;^°      The   contrac^s  of   carta,in  persons   are  not 
binding   upon   the:;.  beGa\ise   the  law  designs  to   protect  them  from  their 
unwiso  promjses;      so^    in  criuies,   the   law  designs   to  punish  r^ui^l.t^ 
r.nd  tlior-^rore,   holds  no  one,   \inable  to   form  the  guilty   intent.,   for 
th?lr   r-^ri^iinrJ.   acts;     but   In  the   case  of  torts,    the  law  design?   to 
;•.  ^Ti.ipt.'nsa.te  tlie  person  injured  for  the   injury  done  him, — hence   it 
}ic;.ds   all  who   cause   an   injurj""  liable  for  the   resulting  damage. 

Lir.iitation  _on  jthe  G_eneral  Rule» 

In  reo.son,   hov/ever,  w]iere   a  particular  intent.,    knov/ledge, 
or  n:ental  condition  is   e.  necessary  elej.aent   of  a  particular  tort 

3   in  iralicious  prosecution)    a  person  charged  '.vj.  ch  a  tort   should 
■lOt  be  held   liable  unless  he   is   shown  to  havt   the  capacity  to  have 
that   intent,   laiowiedge,   or  hiental   state,   as   a  matter  of  fact; 
othenvico  that  particular  tort  has  not  been   conj^oitted  by  him. 

Luna:,'_cs « 

General  rule °  Lunatics  have  the  same  right  to  recover 
for  tOTts  done  them  as  other  persons,  hj  s  gua.rdian  or  Corrimittee 
bringing  the  suit;   so  insane  persons  are,  in  general,  liable  for 
the  torts  they  com^rdt. 

Limitations = 

^lere  malice   is   a  necessarj^  elenient   of  a  tort,    that   tort 
cannot  be  comiTiitted  by   an  inssjie  person,  who   is,    at  the  time   in- 
capable of  having   such  italic  e. 

Measure  of  drmages"      The  araount   of  damages   should  be  limited 
to   actual    loss   in  C2.se  of  torts  by  insane  persons;     while  in  \rases 
of   tortts  by  ajLiio  pex'sons   it  is  proper  that   compensation  shovild 
be  cor;}; wnBU.'.ai:e  with  the  i.ialignity  of  the  motive  with  which 
the   act  was  done, —-that   is,    in  many  cases   exemplary  daniages  ma;y 
b'd   allowed  as   a  punishi:ient ;      but   a  lunatic   not  having  mind  suffic- 
i<>rit  to   fonn  the  malignant  motive  shoxxld  nox  be   subjected   to  pay- 
m:mt  .';f   exemplary  dprnager^. 

Negligence'      An  insane  person   is   liable  for  negligence,    like 
6.   fcane  person,  unless   th^   insanity  has  been  pi'oduced  by  extraor- 
d-;na.ry  perj.l   and   exertion   in  attempting,   at   the    time,   to  pr&tect 
person  ox-  property  from  peril o 


^B^^■. 


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•  .  i  ^        li.'X   , 

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;lv  --^  ■;!■    '-:     ■■  • 

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.":    ^^i•*j:t^o^ 


•'■si  v;b-i'^*^ 


-►-.-■"BS.' 


.-.•  <i 


TORT   S 


Infants » 

General  rule:      An   infant  has    the    same   right    to  recover 
for    torts   suffered  by  him  as  any   other  person,    suit   being 
broufvht   by  his   guardian  or   next   '.  friend   (    i^    e.,    anyono   who 

will  undertake    the   suit  for   him):      so,    also,    an   Infant   is 
generally  responsible   for   his    torts    the   same   ac   any  other  person. 
Limitat  iong  ° 

Negligence, --  A  mere   child  cannot   bo   accountable   for   not 
using   the   dif-icvetion  of  an  adult,    but    only  for  not  using   that 
care    ordjuarijy  used  by   others   of  his   age.      Infancy   is   an   impor- 
tro.t   f^ICTuint  not   only   to   determine  v/hether    the   child  ha^3   been 
neglirjent ,    but   also  whether    the   adult   plaintiff  or   deferxUmt 
wa?   himself  negligent;      for  what  would  be   due    care    toWcir,u  an 
::-'alt,    is   frequently   great  negligence    toward  small  chr'.idr?no 
'i.'i;:s    is    illustrated   in  cases   where   dangerous  machinery   is   left 
unguarded,    in  places  where    it    is    likely    to  attract   children 
end   induce    them  to  meddle   with  it,-  e.    go    unlocked  railroad 
turntables   near   children's  playgrounds. 

Malice:      V/hen  malice    is   an  essential   elem.ent    of  a   tort,    it 
JG   a   question  of  fact    to  bf;    determined  from  the   Hf-e   and  mental 
capacity,    whether   such  malice    can   or   cannot  be    imputed   to   the 
infant    charged..-   If   it  cannot  be,    the    tort  has   riot   been  committed 
by  him-    The   rules   of    the    Criminal   law    that   a   child  linder   7    can 
not   h^.ve   a   felonious    intent,    between  7   and  14,    is   presumed  in- 
capable^   of  having  such  an  intent,    and  over   14  is   presumed  cap- 
able   of  having   such   intent,    do  not  apply   in   the  same  way   in 
torts;      In   torts   the    question  of  capacity  of   the   infant    to  form 
the  n.ai  Icious    intent  necessary   is   to  be   determined  by  the   jury 
fi'om  the    evidence   before    them  as    to   the    child's   actTial   capacity" 
Contracts  - 

Since    an   infant    is   not   bound  by  his    contracts,    if  a  wrong 
grows   out    of   the  contract   made   by    the    infant,    in  which   the   real 
injury   arises   from  the   non-performance   of   the  contract    the   law 
vrill   not    permit    the    contract   to  be    indirectly  enforced  by  suing 
in   tort;      but    if   the    contract   simply   serves   as    the   occasion 
whereby   tlie    infant    is   enabled  to   comm.it   an  independent    tort   not 
ai'isinn,   frcmi  the  mere   non-performance   of   the   contract,    the 
infant   ir^y  be   sued  for    the    tort. 

A'T^-j-  A  false   representation  as    to  his   age   whereby  a  person 
■j    inauced  to   contract  with  the    infant   believing  him   to  be  of 
?"'.gf ■.,    is  not   such  a  wrong   as  will   enable    the  person  defrauded 
to  iviaintain  an  action  o1.    tor  to        Tnere   are  well    considered 
r. i^-esj,    and  perhaps   <^vipported  by    the   best     .  reason,      to 

the   Gontrai'y- 


.PK*  .V:.  ,      .  .  ',.  ^  ...J;. 


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TOR    T  S.  3. 

If   the    infant   obtains  property  by   such  representations,   while 
ills   r-l'.-ht    to    disaffii'm  his    contract    is   not  defeated 

by   a   fai.lure    to  retirn   the   property   so   obtained,    yet  he   will 
not   >M3   pf^rmitted  both   to   disaffirm  his    conti^act   ar-.rt  7:SiM.i.n. 
8Vi.?h  cf    the   property   as   remains    in  his   possession  at    t.ho   time 
of    the    disaffirmance.      It  may  be    sued  for    in  repifjvin   or 
trover . 

Command  or  .ad-^rjce:      An  infant   is   not   excused  fi'om  liability 
by   showing    that  ho    committed   the    tort  under   advice o 

Pail^ntE  si'e  not  liable  for  the  torts  of  their  children 
cciiTuitted  without  their  aathority,  or  consent;  or  v/hile  not 
cn,_-o.fi    l   in  performing   services   for    the   parent ■= 

!''.-rried  women o 

At.  Gonrnon,  Lawo      General  rule '      A  married  woman  was   liable 
for   her    torts    to    the   same    extent    as   otlier     persons:    but  her  hus- 
oci.nd,    if  alive,    wao   entit],ed   to   recover    for    torts   suffered  by 
r.or- » 

F^xjeption.    She   was   not  liable   for   fraudulently   inducing 
lotlier    to   contract   with  her    by  falsely   claiming    to  be   i.inmarriedo 

Suits,    however 5    for    the    torts    of  a  married  woman  mu&t   be 
against  both  husband  and  wife,    and  because   he   was   entitled   to 
al'l   her   property  and   ohe    income   and  profits   of  her  real 
p^'op'.ir  ty,    he  must,  if  alive,    pay   the    judgment.        If;    however, 
thsi   ■^■Lfe    survived   the   husband,    she   alono  was   liable   for    the 
tort   not   prosecuted   to   judgment   before    the  husband's   deathc 

l-li:5?li§.  coriunitted   in   the    presence   cf    tie   husband,    by    the 
wife,    were   presumed   to  be    the    torts   of    the   husband   alone;      but 
this   presiomption  could  be  rebutted  and  the    tort   shown    to  be    the 
joint    tort   of  the   husband  and  wife,    or    the    tort   of    the   wife 
alone;      yet  while   alive    the  husband  was    liable    in  either    case^ 

IfeilfX-  li'^^Ult'.d  Womep '  s   Ac  ts  ^      These   usually  enable   the   wife 
to   ov/n  and  control  her   own  property,    and   sue    and  be    sued  alone 
for   her    or;n   torts  ^         In  some    scates    it   is   held  that    the  husband 
is   not  relioved  from  liability   for    the  wife's    torts  unless 
expressly    so   stated;      while   in  other    states   it   is   held  that 
taking   away  his  right    to    the  wife's   property   also    took   away 
hi  ■•    i'iability   for   her    tortso 

l:  us  band  and  Wife  are  not  liable  for  torts  against  each 
:Uit^r's   person;      but   in  C5&«   of    threats    and  violence   either, 

1   complaint   of   the    other,    could  be   put   under   bonds    to  keep 
..'■'.'^   peac.ec        Under   recent   Statutes    they   probably   are    liable    for 
■.nji;..'iGs   done    to   each  otht;r's   property. 


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TOR    T   S. 


Eirunkards:      one   who   is    driink  at    the    tame  he   commits  a 
tort   is   liable   fov    ito      In  other   woi'ds   drvmkenness   doea  not 
excuse »        In  some   cas'ss;.    as  malicious   prosecution,    or   libol,    or 
slanc.-.T,    th'3   fact   of  di'unkenness  may  be   shewn  in  mitigation  of 
damagcao  •     I>unkemiess   does   not  excuse    the   druiiken  P'Srson  from 
liability   for   negligence;      but   the   knoftn  dronkemiess   of  a  plain- 
tiff at    the    time   may  be   such  as    to  require   a  greater    degree 
of  care   for   his   pro  taction  from  one  who   is    in  a  position  to  do 
him  damage  o 

.Dii\'o^.3,    does   not  excuse    torts   by   the   one  under    compulsion 
at    th-    timSo        It  has   been  said  howeve?',    that   obeying   ccmmands 
of  military   officers    in  actual  military  service   at    the    time, 
iii   an  excuse  o 

Private   OorporationS"        A  private   corporation   is   liable 
for    torts    coninitted  upon   its   behalf  by   its   agents   and  servantSj 
while   engaged  in   the    corporate   business c,    substantially  the   same 
as   a  master    for    tha   acts   of  his   servant c        I'hey  have   been  held 
liable   for   assault,   battery.,    false    imprisonment,    malicious 
pi'osecution,    libel^    trespass  upon  property,    conversion,    con- 
spiracy,   deceit,    infringements   of  patents   and  copyrights, 
nuisance,    and  negllgencec        It   is   said  that   a  corporation  can 
can  not   be   guilty   of  slander, --because    it  can  act 

only  by  a  deputy  or   agent,    and  slander   cannot  be   comnitted  by 
deputy=        This    is   an  old    technical  rule   of  slander, that   it 
is   believed  is   passing   away^ 

Ultra  vires    tort.^, —     When  a  corporation  through  its  pro- 
per   conti-olling   officers   has   engaged   in  lines   of  business   not 
authorized  by   its   charter,    and  in  the  management  and  conduct 
of   that   business  .J    torts  are   conmitted  by   the  agents   and  servants 
of   the   co?'porat  ion,    such  corporation.,    by    the   gr«at  weight   of 
authority,    is   liable    therefor.  There   are   soms   cases   to    the 

contrary  o 

Charatable   Corpora tJ.oq.§ ^ —     Private    corporations,    organ- 
ized for  public    charitable   purposes ,    and  not   for   profit,    are 
r.ot   liable   for    the   torts   of   their   officers,    agents   or  servants 
done    in   the   administration   of  the   charity,    or  rendering   the 
services   for  which   they  were   form.c&o        Such   torts  are   considered 
to  be   only   those   of   the    pftrsons   committing   them,,    and   they   should 
tear   the   loss,    rather    than   the   funds    of   the   charity  be    taken 


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TORTS 


to  pay   the    loss^        It    is   said  hov/ever,    if  such  corporations 
give    their    services    for  pay,    with  a  vie-.v    to   profit,    they   be- 
come  liable    for    torts   as    other   corporations « 

A'.pyria  Corporations^        Thes^   aa^e    stxch  £13    :-.re    orgi;nized 
prinrdrlly   for    governmental   purpr.ptfs,    and   include    the   National 
Go\ernment,    the   State      govcirnmontS;    the  various  Municipal  Cor- 
porations   tha':   a:o6   o)  ganix;ed  undfjr   charters   granted  by    the 
State,    and  public    quasi-corporat ioKs,    tnat  have    some,    but  not 
all,    of   the   powers   of  corporations,    such  as   county  and   town- 
ship  01'  ganizat  ions  <■ 

As    to    the   National   amd  S.t_ate.  governirAJiit,g,    while    thejr 
acts  may  b^    such  as    if  done   by  private   persons  would  give   a 
right   of  action,    neither   of   these    can   be   sued  without   their 
consent   being  first   given  by  legislative   of  constitutional 
provisions.        Henco    they   are  not   liable    for    theii'    tortious   acts 
except   so   far   as    the:'  have    expressly  provided  for   suits   against 
themo  Statutes   fi^equently  provide,    hov/evsr,    that   the  Nation 

or   State   ma;;   be   sued  in  certain  ca.^es.;    or    in  certain  Courts,    as. 
the   Uo    S.    in  the   Uo    So    Gom't   of  Claims » 

As    to   municipal   corporations;,    and  ii"as.i.- corporations, 
they    sre   almost   universally   allowed   to   sue    and  be   sued. 

Buf;    in  all    thej^e    cases, --where   suits   are   permitted   to 
be   brought,    whether    such  piibl  ic    corporations   shall  be   held 
liable    for    their    tortious   acts    depends   upon   the   function   they 
are    at    the    time    exercising^         Their   functions   are   usually 
classed   into, 

(a)      Governmental, --for   pui*ely  public  p'orposes, --merely 
as    a  part    of    the    governinentai  machinery   of   the   State »        And 
although   th'i^e.e    are   either   legislative^    judicial,    executive, 
or   adrainistrativR ,    and  are   largely   of   a   discretionary   charac- 
ter,   they  are    conferred,  upon  the   particular   corporate   body 
not  for    the    special   benefit   of   it   or    its  members,    but  for    the 
general,    public   welfare,    to  be  v/ielded  as   a  part   of   the    govern- 
menta]    machinery  of   state.         The    offi.  cers   select^'-^d  by    them  for 
these   pm^poses    are  not    their    servants,    but  are   State   ofi'icers    . 
v-fho   act  upon    their   own  responsibilityo        The    State  merely  pro- 
vides   the  method  of   their    selnction,    and  designates    their 
powers,    but   does   not    insvtre    thKir   capacity   or   faithfulness, 
fecept   indirectly  by   providing  punishments  for   their   short 
c  omin.f^K  c. 


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TORT   S, 


(■b)      PrJ.Ya_t§., '-      or   purely  corporate, --for  purposes   beyond 
or    in  addition   to    the   purely  governmental   fxmctions    as   an   instru- 
ment  of   the   Stale;      such  as   authcritiec   engaging   iix  business 
of  a  private    or   profitable   kind,    for    the   special  benefit   of"" 
the   particuj.ai'   corporation,    rather    than  for    the   public   benefit 
of   all    the   citizens   of    the   State »        For   example,    the   State 
itself  might   engage    in  farming   or   mining,    or  become    a  share- 
holder   in  a  banks    ^^tc        But  here,    a  more   or   less   well    defined 
distinction  arises,    mainly   of  a  historical  rather    than  of  a 
logical,  character ,    which  presumies    that  all    the   functions   exer- 
cised by   the   State    or   public    quasi-corporations,    like   counties, 
tov/r.ships,    road  and  school   districts;    are    of  a  purely  govern- 
mental  chai'acter,    and  not   conferred  upon   them  for    their   private 
welfare,      their   buildings,    the   State   house,    the   Court  house, 
the   s  cho  olhpuse  ,  -  -  the  ir   lands ,,  --parks  ,    schoo  1   gr  ounds ,    and 
pubj.ic  roads, — a3."tt   public   property  and  are   controlled  and  men- 
aged  for   public   purposes    in  the   exercise   of  governmental  pov/erso 
So   all  provisions  rsgul&ting   the  public  health,    the   public 
safetjs,    th«   public   morals,    and   the    control  p-nd  irana.:;ement   of 
the    instruments   necessary    therefor,    are   exercises   of   the   govern-^ 
mental  functions   for   public   purposes--        In  the   absence    of 
speciaJ.   statutes  making  such   quasi-corporate   bodies   liable  for 
the-  improper   exercise,    or    the   failure    to   exercise,    such 

powers  resulting   in  damage    to   a  particular   porson   there    is  no 
liability"        There    ig   poor   or  bad  govtirnment,    but  no  violation 
by   Uie    quasi   corporation  of   any   special  duty    to    the  person 
hui't,    but   only  a  violatj. on   of   a  duty  owed  to  all   the   public 
alike  » 

In   the    case   of   pur'ely  munic.rpal   c.OT^X'r a t Jpx-s. ^    those    that 
have   been   Incorporated,    I'h'rre    is    a  somewhat  different  presump- 
tion,   bas6e  mostly  upon  histarical  reasons  •        By    incorporation 
they  were   considered  as   hue  on:' n^-,   ar  t  if  i  c  i  al   p  er  s  on^. .    and  capable 
of  holding   £>.nd  owning  property,    riighcs;   and  privileges,    like 
individualfj  J    some   of  which  might   bt   conferred  upon  them,     for 
their    special  use   and  benefit,    while   oth&rs  T^i^ere    delegated   to 
them  not   so  much  as   privileges   as   duties   placed  upon   them  as 
instruirionts    of   goveri;jTient,    in  re  ourr.-for    the   special   privil- 
ege fe    granted.        V/hat   .shrdl   be    ',;onsidered   the    one    or    the   other 
of  course    depends   as   much  or  mere   upon  the     .Statutory  provision, 
ay   apon    the    inherent  nature   of   th'.'   power    itself  o        No  reliable 
test  has   yet  been  found  for   determining   thi&  ma/tter.        The 
ruj.e,    however,,    is   fairiy  well   settled   that    if  the   power   is  one 
conferred  by   tho   State   for   governinental  purposes,,    the  municipal 
corporation   is   not  liable   for   its   acts   or   failujr-e    to  act; 


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T  0  K    T   S. 


Whereas    if   it   is   conferred  for    the    special   benefit   of   the  muni- 
cipality,   it    is   liable    for   resulting   damages    arising,    not  usu- 
ally  from  failure    to   act,    but    improper   action   after    it  \jnder- 
take^    to  acco 

Streets:        Although   it   is   considered  a  governmental   func- 
tion wpon   the  part   of   the   state    to  provide   and  keep   in  repair    the 
roads   and  highv^ays   from  place    to   ple.ce   in   the   state,    the   pov/er 
of  control,    cons  i.rue tion  and  repair    of   streets    in  an   incorpor- 
ated city,    vvnich  has   been  authorized   to   open  atreets   and  lay 
taxes   for    their    improvement,    has   been  considereii  as   a  private 
functioa  for    the   special   benefit    of   -^he    city   and   its    inhabit- 
ants,   rather    than  a  govern/uental  function  of   the   state. 
This  perhaps   has   been   in  some  measure    due    to   the   original    ides 
that   a  street   is   a  paved  v/ay,    and  not  merely  a  roadway,    and 
that   the   numerous   p aye d  streets    in  cities   are   luxuries    or   spec- 
ial  conveniences   of   the    inhabitants   of   the   cities,    rather    than 
a  governi-nental  necessity <•        It    is   therefore.^    generally  held  that 
in   the    construction,    repair    and  management    of    its    streets   a 
city   is   liable    for    damage   resulting   from   the   negligent   or    im- 
proper  performance    of    its    duties » 

Sidev;alks:      These    come   under   the   same    category  as   streets, -- 
in  fact  a  sidewalk   is    considered  a  pert   of  a  street. 

Sewers l      Although  we   now   consider    sewers   as   being   construe lec 
mainly   for    the   preservation  of  public  health  of  a   city,    perhaps 
they  were    originelly   considered  rather   as   drains   for    the  conven- 
ience  ofthose   whose    lands   and  dwelllings  were    accomodated  by 
them.        At  any   event,    it   is   pretty  generally  held   that   a  sewer- 
age  system  of  a  municipal   corporation   is   constructea  for    its 
private    advantage  rather    than  for    the   protection  of   the   public 
health  of    the   state,    and  so   in  its   construction  and  use    the   city 
becomi:s   liable   for   damages   arising   tlirough   the   citie?  negligence. 
There   oi'e  cases    to    the   contrai'y  = 

Fire,    Water,    and  Lixrht:        Although  these   departments  now 
,-.&em   to    be    so  much  foi^    tL^   private   convenience   of   the  membe-s    of 
^he   City,    it   is   quite   probs.ble    that    they  were   originally   devised 
mainly   for   the   purpose    of  making  efficient   the   police   power  of 
the   State    in  provifii-g   for    the  protection  of  property   and  life, 
in  an  overcrowded  ar.d  congested  locality.        In  other   words   r.ere 
instruments    invented  for    the   pui'pose    of  helping   in   the   perform- 
ance   of   the   delegated  governmental  power    of  protecting  life   and 


X0is;'^.,.;a?i^y^.r{$,;..  -,      . 


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TOR    T   So  8  = 


property.        At   any   event    they   are   usually  considered  as   being 
governmental    in  character,    rather   than  private,    and  by    the 
weight   of  autlTority,    no  rif^ht  of   action  arises   against    th3   mun- 
icipality for   negligence   or   failui^e    in   the   due   exercise   of.  such 
functions.      There   ai'e   hov/ever ,    many  W3ll   considered  cases    to 
the   contrary,    esjecially   in   the   operation  of  water,    gas,    or   elec- 
tric   light   plants,    which  undertake    to   furnish  water    or    light   to 
privctte   persons    for    a  compensation.         In   these    cases    the   public 
function   is    considered   to  be  merged,    to   a  great   degree   at   least, 
into    the   private   business   of  supplying  private    individuals,    and 
private   liability    therefore   arises. 

Pllice.      In   the   preservation  of    the   public   peace,      and 
safety,    whether   under    State   laws    or   through  authorized  city   or- 
dinances,   the  municipality   is   considered  as   exercising  public 
or   governmental   functions    only,    and  is   not  liable    for   damages 
resulting   from  its   failui^e    or   negli^^ence.         There   are    sane   cases 
un;.ler    special   or   peculiar   cii'cumstances,    holding  otherwise;      but 
these   are   anomalous <> 

Publ ic    Schools:      While   city   officer^   are   frequently  placed 
in  authority  over    the   city   schools, --the   public    schools   are   a 
part   of   the   State   public    school   system,    and  city   officers    in  con- 
trol   thereof,    are    in   the   exercise   of   gevernmental   pov/ers,    from 
which  no  municipal   liability   arises- 

Street-railways..  --     operated  by  municipality, --whether 
such   is    or    is   not   a   governmental   function,    is    yet   a  matter    of 
speculation,    at   least    in   the   United  States • 

Public    Officers,--      The   foregoing  has  related  to    the   liabil- 
ity  of    the   public   corporation,    itself ,    and  not   to    the   officer, 
agent,    or    servant   of   the   ccrporationc        Such  officers,    agents, 
and  servants,    act  upon   their   own  responsibility,    and  whether 
they   are    liable   or  not   depends   upon   the    question  as    to  whom  the 
duties   placed  upon   them  are   due,—  whether    to    the   public  alone, 
or   whether    to  private   parties   also;      if   the    former    they  are 
.Liable    only   to   the   public.,    even   though  a  particular  person  may 
be   hurt;      if   the   latter,    they  are    then  liable    to  both.        This 
matter,    however,    is   fully   discussed  fm-ther    along  by  Judge 
Cooley. 


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T  0  R    T   S    o  9. 


PROBLEMS   AS    TO   LIAPILIIY   OF  PERSONS. 

1«        Po    owns   a  horse   which  he   hires    to   D=    v/hom  he   knows 
to   be    insane   at    the    time.        D.    kills    the   horse,    and  P,    sues 
him  for    the    loss-         Is   D.    liable?        V/hy?  _ 

/  7    V''^^     '-i  1  i •  /  ^  ^  ^ 

2f.        D.    is   an   insane   hotel  keeper,        P,    knov/ing    this    f  ac  t  ^^^..e^  ^ 
puts   up   at   the    hotel,    where   his   goods   are    stolen-.        P.    sues   D,    u^ 
for    the   loss=        Can  he   recover?        V/hy? 

Ao    insures   his   life   in  D.    an  insm-ance    company,    in  favor    of 
P.    for    f;;i,000c        Afterwards   Po    becomes    insane    and  killed  A.        He  ^^^'■^*^. 
i:hen  sues    the    insurance   company,    Do    for   (;i,000.        Can  he   re-  ^ 

cover?        Why?      ^^^^^^J,^     ,,  (A,  (Q  |^.  ^^         ,rf  MIg/?. 

4.        D.was    the    owner   of  a  house;      for   several   years  he   had 
besn   insane,    and  v/as   confined   in  a  hospital   for    the   insane,    and  at 
the    time   had  a   gviar-iian  appointed,    who  had  the  management   and 
control   of  D'spPoperty=      The    doorstep      of  D's   house  was   so 
defective    that  Po    in   the   exercise    of  due   care,    and  in   the    law-     u"^' 
ful  use   of   the    step..,    v/as    injured  by    its   breaking  dov/nc        P. 
sued  Do        Is   D.    liable?        Why? 

/ i%  'yn^o<^^i-^  .   %  *?     —     /  «  6  2-  . 

5o  D,  is  an  insane  justice  of  the  peace;  without  any 
complaint  being  made  before  him,  he  issues  a  warrant  for  the 
ai'rest  of  P.  charging  him  v^ith  perjury.  The  justice  puts  this 
warrant  into  the  hands  of  a  constable,  who  arrests  P.  and  brings 
him  before  D,  who  directs  P«  to  be  kept  in  custody  for  24  hours,'' 
which  is  done  o  Nothing  further  is  done,  and  Po  is  then  released 
P.    sues   Do      Is   Dc    liable?      Why?  .  ^  ^         ,       ,^  ^A,  ^^ 

G'.        D„    is   an  Insane   person  who    conceals   himsolf   in  P's 
barn.        Po    izio.  his   neighbors    in   trying   to   capture   D.    make   him 
furious  5    whereupon  he   fires    the   barn,    and  sho  otb   P's   wife    .in      V^- 
his   fi-enzy-        Under   Lord  Can^pbell's   Act,    P.    sues   D.    for    the 
death  of   the  wife.        Is   D.    liable?        Why? 

tX\    PiJl,  (plc6  /g*^. 

7.        P«,E.,    and  Dc    aa-e    joint    owners    of  a  vessel,    which 
they   put    in   the    hands    of  D.    to   control   and  manage-        Owing    to 
extra  exertion,    loss    of   sl'^ep.,    ana  long  peril    from  a   severe  >2-o 

storm,    D.    becomes    temporarily   insane,    and  c-:.llow3    the   vessel 
negli.gently   to  di'ift    on   the    coast   and  become    a  ^iTeck.        P«    and  ■( 
B.    sue   D.    for    the   lost'        Can  they  recover?       V/hy? 

^   «~v-^>^  //^^      'X.o^.      fVa-       _   /jyy 


-  r\'T»-"  n 


A  i: 


V  ^' 


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.    .  1  B  J-  hns  }. 

..^.:':.::  ...  V.  .....  ^^   ;'  ..  .-  -■-.  ■.<: ,..-  -^^^^p^.,  ..^^  .. 

'in/s  .ij.jM;r;iV/  ::  -  ■     .     .ii   iis   si:    *^I        .^ 


■•■ .    _  .1,1  J 


,  ■  •»  r    i  '" 


:^r:.EVfO 


TORTS    .  10,. 


8.  Do   was   undei'   guai'dianship   as    insane,    but  representing 
to   Po    tliat    the   guai'diajiship   had  been   terminated,    applied   to   him 
to   act  as  his   attorney   in  anothsr   i-rattero  Po    not  knowing 
this   was   untrue,    accepted,    and  enoered  upon  the   service,    and 

took   a  mortgage   upon  D's   land  foi    has  fee,    which  was  represented  ^^i*"^' 
to  him  to  be  un incumber edo        But    in  order    to  preserve    the  mort- 
gage  P,    paid  off  a  judgment   already  a  lien   on   the   land,        P» 
sued  D.    for    the   amount   so   paid.        Is   he   liable?        V/hy? 
^^>_<.^--«.^-.i>^    T.  I'k-t..^^*^  /3_*t    'h^.  10(0  

9.  D.~   while   notoriously   insane   falsely  publishes    in  a 
newspaper    of  very   extensive    circulation,    that  Po    is   a  murdered. 
Po    sues   Do    in  an  action   on   the    case   for    the    libel;      D„    pleads 
the   general   issue, --that   is,    not  guilty^        At   the    trial   Do 
offers    to    introduce   evidence    of    insanity  at    tlae    tim^    of  publi- 
cation  of   the   ]ibel,    as   an  excuse   for    the   same.        Is   it   admissible 
for    that  pm^pose,    or   for   any  purpose?        Why?  £*^*-«-*^>.^ '*'-'-^-^  •^  rf^--**.**. 

lOo        Po    is   an   infant    one   year   old,    when  his   father   dies, 
and  lands    descend   to  himo         It  was    the   duty  of   the    father 
to  maintain  half   of    the   partition   fence.         The    child  neglects 
to   do   so,    30    that    the   cattle    of  his   neighbor   D„    get    in  and  do 
dama^^e .        Po    sues   D.        Can  he  recover?        Why?      'H^. 

11 o      D.    is    an   infant   one   year    old,    when  his   father   dies, 
and  lands    descend  to  him.        It  was    the   duty   of    the  father    to 
maintain  half  of    the   partition  fence »         The   child  neglects    to 
do   so,    so    that  his   cattle    get   oxi   to  P*s   land  and  do.,  damage  o 
P.    sues   Dc        Can  he  recover?       Why?      •  Y*^  ' 

12 o      D.    is   a;i  infant   four   years    old;      without    the   negligence 
of  Po,    D.    gets   P's   v/atc.h  and  breaks    it,    so  as    to  make    it  worth- 
less.       P«    sues   Do        Can  he   recover?        V/hj'?    'H-*'*- • 

l^o      D.    ih:   a   boy   s.ix   years    old:      he   goes   over    into  P's 
flower    garden  and  pulls   and   tramples    down   tne   flowers.        Po  i 

sues    Bo        Can  he   recover?        Why?  ^-f-^- 
/  •7  or/lyy^  .    Q^-if    —  /  S  o  3 

14.      Do    a  boy  12   years   old,    while    sitting    in  school,    •'Ji 
fun  and  not   intendj.ng    '.0  do   any  harm,    kicked  his   neighbor   boy 
Po    on   the    leg;      at    that    time    chers   was    a  sore   nearly  healed  on 
this   boy's   leg   just  above    the   knue.         In  consequence    of   the 
kick    the    sore   broke    out   again,    the   bones   oelow   the   knee   be- 
came  diseased,    aiid   strious   results   followea«      P=    sued  Do        Yfas 
he   liable?        V/hy?      M-*^  . 

^0  y^^    A^^. 


..,;iitt't-.'Odbaij;-/jv^-^;ii. t>r ■-•.I, i .:,...  .■  . .  ...  . -.,. ^..  .  ' 

:a/rxnBr7fi>:; ; -tare. -9 1- -1         ti-o^  ^rm^jii:::; 

,  s^iLlIri^i-SCJifHtijri-.^  >:-..  s.  ..J.  in:;rs(xv  ■  —  ■  :..u--..  .=iu;.i  ^ii'^.O  :  ... 


(.-  --0.1  . 


TORTS.  11, 


15.  D,    a   boy   13   yeai's    old,    in  sport,    unintentionally, 

but  not  in  mutual  play  tbrev/  a  piece  of  mortar  at  Eo  but  rnisr,ed 
him  and  hit  P.  in  the  eye,  and  seriously  injured  himo  Po  sued 
Do      Is   D»    liable?        V/hy?      ^4-*^  • 

16.  P's  horses   escape    into   B's   land.        Bo    directs   his 
son  D^    fifteen  years    old,     to   turn   them  into    the  road,    which  he 
does,    knowing    thom   to  be  P's   horses.        They   stray   av/ay  and  are 
lost.        P.    sueo   i)o        Is   D.    liable?        Why?  a*»*  . 

lo  <Vju\^.  /»  7/.  ^ 

"l7        D.    a   boy   19   years   old,    had  the   appearance   of   a  person 
^•f   t'.  5nty   or   over;      he  wished   to   pui-chase   a  supply   of  hats   for 
resale,    and  applied   to   P.    for    that  pm-pose;      P.    inquired  iS"  he 
xas    of   full   age,    and  was    told  he   v;as,    whereupon  P.    sold   the 
hats    to   D.    for    s'^57o00   and   took   D's  note   for   the  same;      this 
was   not  paid  when  due,    and  the   hats  had  been  sold.        Po    sued 
J";.    on   the   note,    and  jud,7nent   was    f^iven  for  D,      whereupon  P. 

T9d  Do    for    the    fi'audulent  representation  made   by   D. ,    and 
alleged  as    d?ar;ages    the   value    of    the   hats,    and    the  amount  of 
costs   he  had   to   pay    in   the    suit   on   the   note;      the    jury  gave 
a  verdict   for    thisamount,a'^d    interest^        Was    there    erroi'?        Y^hy?  <^'<'*» -^^^ 

18o      Do    is   a  boy  under   21  years   of  age.      He  hires   a  horse  * 

and  buggy   of  P.    to   go    to  Ypsilanti;      but    instead  of   going  there, 
and  without   consent   of   the   o'.vner   he  goes    to  V/hitmore  Lake;      while 
there    tho   horse    is   struck   by   lightning  and  killed.      P.    sues  ^^  ^o^  TmJ 
D.    for    the    lossc         Is   he    liable?      V/liy?       ^V^ '  (x7«>t>^  "^^T*  7 

19.      D.    purchased  and  gave    a  gvon   to  his   minor    son,    A. 
This    boy  was    in   the   habit   of  using   it  negligently   and  recklessly, 
and   this  negligent  use   was   known,    countenanced,    consented  to, 
and  encouraged  by  D.    his  father.        One    day  A.    came   along  where 
P>    was    leading   a  colt,    and  against   P's   protest.    A,    negligently 
fired   the    gun   in  front   of   the  colt,    which  thereby  became   fright- 
ened,   ran  away,    and  P.    becoming  entangled   in   the   rope  with  v/hich 
the    colt  was   led,    was   di'agged  a  long  distance   and  severely 
injm-ed.        P.    sued  D.        Is  he   liable?        Why?    ^^^\ ^ ^j^  itcJi.  ^'UJu^^'^* 

30,      D.    was   a  boy  12   years   old;      about    the    fo'Jirth  of  July 
he    obtained  a   giant   fire   cracker   which  after    lighting  he    threw 
down  under   a  horse    belonging   to  Po,    where    it  exploded,    and  scared 
P's  horse    to   death.        P.    sued  D.         Is   D.    liable?        Why?   ^e^ . 


■\'^p 


Ls'i 


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'v.-i. 


;fo^.  y.wz  er|^. .  a;,  .'jsct  .pJ. . i^«ri.  efi,.  s,:  bo \ 
"■■'''■"'"■  ■'fb'}:  J'o'iHb'xav '; 

1  •.■.'-_    . ;,_  _..  ■';  ;.'.  »  ax  -Vc  .  .81. 
"i^ii    :p^ifwiih^  01.  PS-  P:j..  '.5^  ^.p,  ^a:^/-'.!^  J^V-! 


:'  -.      >."V"4  ''..■•'■!  V  J-        J-'-      _     ■  - 

.  .t^.Ejyj-o'i'j  ;.£  .    ■/b^>  ijap  y?'Ibo  /;  .ei   a: 


'slrfail 


P   ^,.  ^is'tiv..  erf  ti^^'^^'V:}^, 


•:n 


OJ     9J 


TOR    T   So  12. 

21.  P,    a  hoy   10    vpars   ol'^,    ";?s    ^  s   son.        ■^.    in  a    fit   of     "    ■'^' 
paasion,    iniensified  by   drink,    and  without   any  justifiable   cause, 
fiercely   assaulted  P..    and  permanently   injured  him  by     putting 

out   P's   eye.        P.    sued  D.        Can  he   recover ?  r-u Why? 

22.  Do,    a  boy   15   years   old,    was   P's   son.        An  uncDe   had 
left   an  estate   worth  ^100,000    to   D.,    and  G.    had  been  appointed 
guardian  of    this    estate   until   D.    cm\s    of  age  =        D,    without 
justifiable  reason  assaulted  his    father    and  broke   his  arm,  ^A— -a-r.-^ 
for  which  damage   P.    sued  D.         Is   he   entitled   to  recover? ^t,Y/}-iy?    U*^-) 

23 o      Do    is    the   father    of  P.    a  boy  5   years   old,    when   an 
.uncle    of  P.    dies    and  leaves   him  a   fine  gold  wafcch.        D-    the 
father    takes   charge    of    the   watch,    carries    it   around  and  uses    it 
J^  as   his    owno         Through  D's   negligence    the  v/atch   is   broken,    and 

becomes   \fforthless.        ?»    through  a  next   friend,    sues  D,    for    the 
^'  value   of    the   watch.        Can   the   suit   be  maintained?     Y/hy?  .    _-     T*-^' 

24.  K.    and  W.   v^ere  husband^and  wifec        P,    sued   them  jointly 
:n  replevin  for   sheep   alleged  to  have   been  wi'ongfully   taken  and 
detained  by    them;      thei'e   was   some   evidence    to   show   that   the   wife 
W.    claimed   the    sheep,    and  was    the    active   party   in  taking   them. 
The   defendant's   asked    the    judge    to   charge    the    jury    that    if   the 
taking  and  detention  vfere   by  H&  V/o    jointly,    or   by  W.    in    the 
presence   of  H. ,    the   verdict  must   be   for    the   defendants,    or   at 
least    the   hiisband  alone    could  be   held  guilty.        The   court  refused 
to   so   cmrge,    and   there  v.'as    a  judgment   for   P.        Was    there 

error ?>tff- Why?  ^/  TKx..  j  d  i~  /S«-  '^  . 

25.  D.   was    the   husband   of  V.';    she   in    the   absence    of  D«    and 
without  his    consent   or    s.-nction,    faj.sely   slande:ded  Po,    who   sued 
Do,    for    the   damage.        The   statute   at   the   time   provided    that   the 
wife   should  be   persoxially   liabJ.e   for   her    lorts,    that    the   husband 
should  not  be   IJable   for    any    tort   of    the   wife    in  her    carrying 

on  any   separate   business    or    trade,    but    that  nothing   in   this    legis- 
lation  should  be   construed   as    exempting  a  husband  from  liability 
for    tho    torts   of   th«   wife.        V/as   D,    liable?  >^V/hy? 

26.  H.   was    the   husband  of  !>'    who  was    the  ovmor    of   certain 
pioperty,    which  D.    authorized  h^^r  husband  H.    to   soli   for  her. 
In  doing    this,    H.    made        false   and  fraudulent  representations 
v/hereby   the   p'jrchastr   ?c    was    damaged.      Pc    sued  D.    without   join- 
ing   the   husband.        The    statute   provided   tlia  c   a  married  woman 
may   sue   and  be    sued   iix  all  matters   having  relation   to   her   sole 
and  separate   property,    the   same   as   if   she  were   sole. 

Was    the   suit  properly  brought?^  V/hy?  ^ 


'lo   J  x'i    i3.nx,« 


!^  „  rra -^     ^'"      p  C.TT     .'^io     P."'  'Ofi     fi     tl        •  iii 


r'  *  r 


'ii'z       -.:    ^'fvfi(f^-tlJslnfi>/iiiiJ?m^Bd''':t  '  '  ^ffBt^i'-^S^'-td'-siOl- 


no 


;.  "•  I 


.;x.-sj\:p   lo    ic, iwo  .sriJ    sfiw  :,  xjii-jbcbwI    6flJ    aBW   .H      .aS 


--•,  i-,  Civ 


■    O  'Hi.    -« - 


T  0  K    T  S.  13, 


27.      Ho    and  V.'',   v/ere   husband  and  wife;      they  were    sued 
jointly  by  P^    for   alle,';:d  slanderous  words   falself  si'oken  by  Wc 
the  wife,    without   the   presence   and  consent   of  K.,    the   husband, 
of  and  concerning  P"        A  verdict   was   rendered   for  P»,    v.'hich  was 
set   aside,    and   the    complaint  was   dismisaed  ar   against    the   hus- 
bando        The    siatute   at   the    time   provided  tha c   "in   an  action 
or    special   proceeding   a  married  woman  apfjears,    proseci'tes    or 
defends,    alone    or    jo.'aed  with   other   pai'ties   as    if  she   was 
single.        It   is  not  necessary   or   proper    to   join  her  husband  with 
her   as   a  party    in  any  action  or   special  proceeding  affecting 
hv^r   sepai-ats  ^^roperty-"        V/as    there   error   in  setting   aside    the 
verdict,    aad  dismissing   the   complaint  as    to  H-?\o-«,Why? 

28o      Ho    and  Wo   were  h';sband   and   .fife.        When   Ko    was   not 
present,    and  without  his   consent   or   paitioipation   in  any  way 
W.    falsely  slandered  Po    to  his   damage »        P.    sued  Wc   wifmut 
.ioining  h.        The    statute   provided   that   "all  her   separate   prop- 
erty,— real   and  personal,    choses    in  action  and  earnings, — 
is   under  her   sole    control,    to  be  held,    owned,    possessed,    and 
enjoyed  by  her    the    r>ame   as    thou^,h.  she    was    sole   and  unnvarried," 
and  she    could  sue   for    the   same    in  her   own  name    free   from  the 
interference   of  her   husband.        Was    the   suit  properly  brought?   "^-^^  • 
Why  ■?  ,>y^  .   ^   dL.    (,r  d-^,  /  a-  'J  .     ^  /  i  >  ^ 

29.      Do    and  V .    had  h^Qn  husband  and  wifs^    but    at    the    cime 
of   suit  had  been  divorced.        During   the  nvunviage,    and  while 
they  were   living   together,    D™    f^rossly  and  seriously  assaulted 
and  injured  P.,    the    vrife   without   causOo        After    the    divorce   P, 
sued  Do    for    the    damage   suffered  by  her.        The    statute   at   the 
time   provided   that   ''the   real   and  pergonal      3 state   of  every   fe- 
male,   ac7,uired  before  mai-riage,    and  all  property  real    and  per- 
sonal,   to  v/hich  ohe  may   afterward  become   entitled  by  gift,    grant, 
inheritance,    devise,    or    in  any   other   raannur ,    shall  be   and  re- 
main  the   estate   and  jcroperty   of  such  female.        Actions  mny  be 
brought  by   and  again-st   a  mr;*ied  woman   in  relation  to  har  sols 
property   in   the   same   manner   as    if  she  were  unmai^riedc"      Should 
she   recoi/-er    damages  .from  Do  ? /to.Wlii'^V^  zS^? 

3  0.  DC  1)  and  Po    were  huso  and  and  wife.      D(l)    and  D(?J    ,7an~ 
tonly   and  without   oxcv.b'^    caj-ried  ?o    to   an   iruiare   asylam,    and 
there    confined  her    for   a   considerable    timf^  o      Afterward  P,    obtained 
a  divorce   from  D(i)    and  then  sued  D(i)   &   D(2}    for    the   damages 
arising  from  the    imprisor.imsnt   in    the   asylum.      Is  kfshe   entitled 


."•  -A       ■  ■'         ■  '^'. 

^ai  \-  .  -.Ltsqj.oi^J^ii--  J- .2irfcfU'fAi'^-i>l??^0f  ii»^fl?89.'^■-- 

■^iift" .  '^*>:<%f '^«;iOT..,.^fja!T.,>':>    Jj  r.eri. ••£« ill ,-:.'.; ,. ,  .'.  ":  -■        ,  , '- ii-jQ p^»fj[. •'£aV:au-;&i.... 

-  ^-  r  ,::Jg:^'«?w?5,-  ti/';on,^j!r...ty^feo.eao^i.«'i9ii*ri:-; 


1  !.  Vi 


•  :^mkk^(^^c 


TORTS.  14, 

to   judgment   against   either   or   both  D(l)    and  D(2),    there   being 
no   special   statute   arfecting;    the  matter?  x^ Why? 

51e      p.    sued  D.    a   banlcin^'T   coriioration  in    ti'cver    for    three 
prouiissory   notes  -each   for    100   pounas .         The   bank  pleaded   the 
general    issue;      a  verdict  was   given   for   P.,    whereupon  Do    rroved 
in  arrest   of   judgment   on   the   ground   than  an   action   of   trover 
would  rot   lie   against   a  corporation.  .Should  the  motion 

be   granted?)u.Why?      ^i^Ui'^f     K  faj  .       CJ^^'M «. .    3  <■)  Y  7^1^^ 

32-      P=    was    the    owner   oil?   certain  barges    loaded  with   coal; 
tliey  were  wrongfully   seized  by   the   agent   of  D,    a  canal 
company,    for    tolls   claimed   to   be    due   by  P.        The   agent   of  Do 
acted  within   the   scope   of  his   authorltyo        Po    sued  Dc    in   tres- 
pass   for  breaking  and  entering  locks   on    the   canal,    and  seizing 
and  carrying  away  barges   and  coal.        P.    pleaded  not  guiltyo 
The   only   question  raised  was  rhether    trespass   would  lie    against 
a   corporation.        A  verdict  vas   given   to   P<        V/as   this   error?    >\^  . 
Why?  */    o^^uu^  riU^.  ^i-^^         /    %'^^ 

33.      Pc    brought   an  action   on   the    case    against   Do    a   turnpike 
company,    for   stopping   a  water    course^    and  got  a  verdict   for 
$305.        It  was  moved   to   arrest  judgment   on   the   ground  that   such 
an  action   could  not  be  maintained  againot    a  corparation-      Should 
tlii;   motion  be   sustained  or   overruled?        Why?       (P.*^vyv*.-tt-U  ■  ^ 

34o  -Po    sued  D,    a  railroad  Company,    and  R.    its   agents    in 

trespass    for   an.  assauxt   and   impr iyol^^^en;,    alleged  to   have   been 
done   by  R.    in  attempting   to   enforce   certain  regulations    of    the 
company   as    to    the   del  ivax'y   of    tickets   .^nd  payment   of  fares » 
A  verdict  ".^as  rendered  for  :?o    which  it  was  moved   to  sjet   aside    on 
the  ground  that   a   corporation  could  not  be   held  for   an  assaulto 

Should  tht;  mo  Uon  be   allowed?  >ix),V/hy?  ,  %  ^-^f 

L,    Cjc^.      3  /  «f      '--  '^  * 

35,      P.    sued  D.    a  R ■.   R-    Go.    fo^    the   publication  of  a  libel- 
D.    pleaded   the    --tineral    issue.      The   evidence   showed   that    the 
directtbra  of  D.  'made   an   investigation  as    to  P's    qualities;      m 
the   course    of   thic;    investigation   the  president   of  D,    va^ote    to 
r-^a  architect  requesting  his    opinion  of  P-;      his  rep^y  Sas   very 
d"p'-3ciative  ^r  P:        The    testimony   taker-,    including   the    letter    of 
the   architect' was   printed  in   two  volumes,    and  these   were    distri- 
buted  apong   the  members   of   the  company.        The   statements,      espec- 
^nl'ly    in   the   letters   w&r3    fflse^        A  verdict  was   given  icr  Po 
which  D,    contended  was   erroneous    on   the   ground   that   a  corporation 
wa-.  not   liable   for   libels      Is    that   correct? n,Why? 


snied   eierft  .^ifg.) 


■  o  ^>  n       '   ..  cti , ,  . ,  T, 


Ov 


;..ic;..^^.^'«.--       .'  :-.'r  -'^        -   :         ;  V  ■  ;''^:r°^  oKX^^H.  .^^^0^-5  ^  '       T'^ 

!?:n8   9d  nc. 


'■~    -"^sit^  .<  ;^' -^tf'^.   •  ■^0,.xl.:n>.  J?;  %u   h) 


p 


T '"  " 


TORTS*  15, 


3R.     Po   was   a  passenc;er  upon  a  ferry  boat,    ajid  was   injured 
firoush   the  ne'^li^-'^'^ce   of   a  ffirryiiian  in  inanEu:5in:';   the  "boat.        1''ae  /  \a72-^~~  *^ 
rooa,t  v/as  owned  "by  D.,    an  educational  corporation,   Wiiich  without    \'ji,cM.^^ 
'a)iy  authority  to   do    so,   had   engaged   in  the   ferry  business,  by  pur- 
c'asin^  boats   and  hirin(j   servants   to  raana-;e   thein.        At  the   trial 
tli.e   justice   rule^   there  v;as  no   evidence   to  warrant   a  findinT  for 
the  plaintiff,    and  directed  a  verdict  for  the  .defendant, — 

this  bein^^  on  the  jround  that  since  the  corporation  had  no  author- 
ity to  encase  in  such  business  and  so  could  not  be  liable  for  cifts 
done   in  carrying   it  one        '.'/as   this   correct?  »u.'«Vhy? 

3?.     Dc    a  municipal   corporation  allows   its  drains   8-nd   sewers 
to  fall  out   of   repair,  become  clo'^sed,    and  cause  surface  water    to 
p-ettle   and  become   a  pond  on  P's   lot,    thereby  rendering   it  less 
valuable  for  use   and  occupation.        P»    sues   for  the  damages.        Can 
he   :cec over?  1^*4  fhy?  _  ^  ^  o  « 

38.  P.   while  passin;   throu'jh nthe   streets   of  D.    a  municipal 
corporation,  without  fault   on  his   partj.  by,   thx'oujh  and  because   of 
the  negligence   of  the   servant   of  D.    a  nuj.e   attached  to   one  of  the 
garba.je   carts   of  D.   v/as  penatted  to    run   away  and   run  over  Po    and 
seve/'sly  injure  him.        The  driver  of  the  mule  we,s   a  small  boy   em- 
ployed by  the  health,  board  of  the   city  to   remove  the   refuse   accum- 
ulations upon  the   street-        Ac  the   trial  a  verdict  was  directed  to 
be   rendered  for  Do        V/as   t/iis   error?  >u '■''H-Ty?  .  a u. 

39.  The  under  side  of   tie   iron  grate  which  covered   the   coal 
hole   in  a  street  beloriging   to  D.,    and  thie   stone   ledge  upon  which 
it  was  placed  became   so  -vorn  that  when  P=    stepped  upon  th^e  grate 
it    slipped  out  of  place   end  P.  was  thrown  down  through  the  hole 
and  seriously  hurt.        The   court  was   asked  to   charge  that   the      city 
was  not  bound   to   examine   it   in  order  to   a.scertain  its   condition, 
and  notice  of   its   condition  could  not  be   implied   if  the  defect 
could  not  be   seen  v/ithout   removing  the   cover.        This  was   refused* 

40c     P.   v/as   a  firo   insurance   company  which  had  insured  A*  s 
v:.'oper-ty  within  the  water   and  fire  protection  limits  within  the 
pit;7  of  Dc,    a  municipal  corj.:'Orrh  ion>   for  a  less  pr-emium  than  it 
VOL". id  have  charged  for  a  like   insurance   outside   of  tnose  limits. 
A* 3  property  was  burned,    and  P.   had  to  pay  for  it.        P.   then   sued 
15 o    B.llejin;  that  D.   had  v.'rongfully   and  negligently   allowed  its 
v/ater  works,    pumps,   pipes, -and  fire   appliances   to  become  out   of 


^*"  '■        tid^ii  ^r.:}i£  eijS^g  §;jf   fcft^'   i;;^£  d?   htiiifr8:Eetr  jfS??^J^£l  ficit    '&! 

i\  > 


TOUTS.  16. 


atopped  with  rand  9tc « ,    and  unfit  for  uso^    to    such  an  extent  that 
t'.ie  T/ater  could  not  "be   thrown  upon   the  house   and  put   out   the  very 
Gli-jht  ilro  that   jiad   started  upon  t;.G   a.rrivp.l  of    tho  fire   dopart- 
roento        D.   dovnurrod    to   tho  complaints        Sh.ould   it  ho   sustained  or 
overruled?  ^    /.ly?  /^i  ^  .^-   "^  ^  ■ ^  <}  ^ 

41o      P' s   corapla.int  cnar^icd  that  D.    a  municipal   corporation 
was  tho  owner  of  a  3ystej;i  of  v/ater  works   consistin:;  of  pipes   laid 
in  the  sroundj    conductin^^  water  to   the  dwellings   of   residents   in 
the   city,   for  which  it   received  compensation.        The   ixu  ediate  man- 
na,:;GMent   and  direction  of  the  water  works  were   rested   in  a  board 
of  v;ater  coirauiss loners  originally  named   in  the   act   authorizing   the 
cr^cttion  of  the  water  works   system,   but   afterwards  to  be   appointed 
by   the  mayor  and   alderman.        In  xaying   the  pipes,    the  work  was   so 
baciy  done   as   to   lea.ve   ridges   in  the   street  over  the  pipes,,    and 
by   recison  of  such  ridges   in  the   street   over  the  pi^es  P.   while 
careful  herself,   'yp.s   thrown  from  her  carriage   and  was  hurt.        She 
sued  D.        Is   she   entitled  to   recover?  ilc  -lay? 

42o  P„  sued  D.  a  municipal  corpora.tion,  for  personal  injur- 
ies  arising  from  the  discharge  by  private  persons  of  fire  arms,  ^V—^^"*^ 
squibs,  rockets,  and  firewarks  at  a  narrow  placo  in  one  of  D's  ^TT*  »  "* 
streets,  which  acts  v/erc  allejcd  to  have  been  by  tho  written  con-  '/"'^ 
sent  of  the  mayor,  and  with  th.e  knowledge  of  the  city  council  and  "-^ •  ••  <4^ 
police  and  other  officers  of  tho  towri  ■,  that  the  acts  amounted  to  '  ^.y 
0.  public   nuisance  which  caused  P' s   toam  to   run  away,    throw  him  j<«<4*n.| 

from  his  carriage   and  severely   injure  himo        D.   demurred.        Should    {,uy 
the  demurrer  be   sustained   oi-  overruled?        ■'Ihy'i 

43.     P.    an  electric   light   company,  toy  a  license   from  D.    a 
m.unicipeJ.  corporation,   h?jd   its  wires   strung  on  polos   part   of  which 
belon:;ed  to   thsa  city,    8.nd  for  which  an  annuaJ.   rental,  was  paic 
The   city  itsolf  was   engaged  in  the   electric   lighting  business c 
Tho  mayor  with  a  force  of  workman  tore  dovv'n  P' s  wires  from  the 
city's   poles-        It  was   shown  that  the   council  did  not   authorize 
this  to  be  done,  but   after  it  had  been  done,    the   city  aut^iorized 
the  bringing  of  a  suit   to   enjoin  P.   from  puttin;   its  wires  up 
again,    as  P..    clairuod   it  had   a  right  to  do.        P.    sued  D.   for  the 
darr-a^'eso     Is   it  entitled  to   recover?,^i4  "^Wiy?  , 

44<=  The  mayor  of  D.  a  municip£?J.  corporation  appointed  a  man 
of  a  vicious  character  as  special  policeman  to  keep  a  street  from 
obscruction.        "•Thile   in  the  perfon^iance   of  his  duties,   but  without 


.-.  r-»  r  r 


.L.^-..../v>vi.^^.;u/-.^^  \fi'--^- ■  .:a^    ^ 


riL     owi4.oj^i^.  J  i       ^^^     c^,--i -_-_•'       _  .   -        .      •     .         ^„'  -.r-  :-o.  ir^■T' 

..-sqiolnix:..  ^*' 


rya 


7n5\r'n:a"i*ror      r{;-i-  nx    •:.....':■:>' 


T   0  ?.  T  S.  17. 


cause,   he  co  raitted   an  assault   on  P.,   for  wliicla  P.    sued  D.        Is 
D.    liable?  TU.V/iJj^-?  ^        ^  . 

45.  D.    a  ;. municipal   corporation  owns   and  operates   a    gravel. 
bank,   which,  is   a  dangerous   place.        It  gives   no   notice  of  warning 
to   the   laborers   at   such  bank,    and  from  the  falling  of  the  bank,   P. 
one  of   these  while  '.TOrkinj   there,    is    seriously  ]iurt.        He   sued  D. 

Is  D.    liable ?-v4*4.U'hy?  v 

46.  P.  was  seriously  hurt  by  the  breaking  down  of  a  defec- 
tivo  brid  ;e,  'vhich  was  under  the  c.^re  and  control  of  the  comaiss- 
ioners  of  Dc  county  a  public  quasi  corporation.   T]ie  county  com- 
i.'.issioners  were  nejli  ^ent  in  lookin,-j  after  this  brid,:;je«   P.  sued 
D.   Can  he  recover?  •;to-*''^^ 


lUi^ 


d- 


V/  COOLSYOlTTORTSo  22 

CHAPTER       XIX, 

ITuisanceg/ 

I.   Definitions: 

Nuisance  is  vei^y-  difficult  to  define,    and  it  lias  lieen  said 
that   "the  most   that   can  be  said  for  any  definition  df 
nuisance   is   that   it    is   not   so   object! onable  as  rr^ny   others". 
2  Jag::;ard  Torts  p. 744, 

It  has  "been  defined  as   a  "civil  wrorg,   consistirg   of  ariy- 
thir^^-  wrongfully  done  or  permitted  which  interferes  with 
or  anno3?3   another  in  the  enjoyment   of  his    legal   rights". 
2  Ja^card  Torts,   p.  744.      Coo  ley,   p,670i 

Definitions   are   sometimes  given  in  statutes  to  the  effect 
"that   a  nuisance  is  anythirg   injurious  to  health, or  inde- 
cent or  offensive  to  the   senses,   or  an  obstruction  to   the 
free  use  of  prOj.)erty,    so  as  to  interfere  with  coafortahle 
enjoyment  of   property,"   2  Ja^gard,  ITote  p. 744, 
A  nuisance  niay     be  said  to  be  any  unreasonable     or  unwrar- 
ramtable  act  or  ommission  that   endangers  or  invades  the 
personal  comfort,    safety  or  health  of  another,   or  annoys 
ham  in  the  enjoyment  of  his   property. 

Mere   annoyances  arisir^j  wholly  froui  the  course  of  nature, 
without  the  fault   or  participation  of  any  person,    are  not' 
nuisances,-  though  the  state  on  behalf  of   the  public  may 
provide  for  their  termination  or   removal.      Cooley   671. 
Nuisance   differs  from  trespass   on  the  one  hand,    in  that 
jthe  latter  is  a  forcible  and  direct   invasion  of  the  rights 
of  another,   while  a  nuisance  is  generally   injurious  only 
in  its   consequences    or   results.      There  are,  however,    some 
acts,   Mitiich  can  be  treated    ^ither  as   trespass   or  nuisance, - 
as  the   overh^n£,ing   limbs  of  treaa,-  these  can  be   considered 
either  as  directly  invading  and  bre  ^kii;ig   the  close  of  the 
euijoining   ovmer,   or   as  being   indirectly  Injurious   in  their 
consequences   only.      Other  causes   of  small  but  continuing 
trespasses,  are  of   like  character.      Cooley  672,   Hale  419. 
Jngcard  745, 

Nulganca,  la  also   different  from  neglige  nee,  in  that   the 
latter  is  a  failure  to  use  care  to  prevent  damage, while 


i.  Xii 


bi:A: 


el  CUB  > 


>^v. 


• :  1  '^^rjr. 


:^.L.-. 


.rfO     ;:'f^!-: 


O,^ €lh  '"I.  r^,.  Jh £f^  ,,5P'..i>V  6'- 


.^UK'<^  ■^■■ 


:  'r  ■ 

'"?" 

.JJQl. 

f,-          ■  —  - 

■  v 

'    .  ■      Aii  J,— 

■n"-. 

■  i 

^r^f-^^    ^ 

'f  ■   „ 

U--'                          ••          ^       nL  V   '      «  .n 

^Alr*. 


•IS' 


7/  COOLFuYONTORTS,  23 


nuisance   is  tlie    annoyunce   resulting  f  ro-i  the  acts   or 
omissions   of    the  def erident,   "by  whatever  fault   of   the  latter 
caused.      In  fact,    iu    laio^  cases  V<.Q  wroncf^l  aot  inay  be 
considered  :^  "beirri   nO(;jligent,    or  wiXljfu].':,    or  the  wror^ 
resulting  therefrom  "beinc  a  nuisance »   Jaggard  747 « 
II.  The   annoyance  may  arise  from  either  or  both  ~ 

(a)  The  use,  mana'^^ement ,   custody  or  control  of  one's  property; -or 

(b)  Personal  misconduct,    such  as   indeQent  exposures,    sing- 

ii-g  of   ribald   songs,    swearirg ,    etct   Jaggard  768. 
Ille   Classes  of  nuisajices ; 

1.   As  to   persons  eiffected  by  them,   nuisances   are  - 

(a)  Public    or  comtnon,    -  an  unlawful  act   or  omj.ssion, 

which  endangers  the  lives,   saf ety /lealth, 
property   or  comfort'  of   al?.,    or  sone  consider- 
able portion  of,   the  public   aliIce,or  by 
which  the  latter  are  obstructed  in  the  exer- 
}  cise  of  any  right  common  to   all.    Pollack  487a 

It   is  a  public  wning  for  Tshich  the  party 
responsible   is  indictable  and  punishable 
criminally.      It  does   not  necessarily  invade 
the  right  of   any  particular  person  more  than 
that   of   another  person,   though  it  may  do  so,- 
when  as  to  him  a  civil  cause  of   action  exists 

aloOg 

(b)  P^i^^^ej"  such  an  annoyance  as  effects  only 

one  person,    or  a  detamiinable  nturiber  of  per- 
sons,   and  gives  the  right   to  maintain  a 
civil  action  for  damages.   Pollock  Ch.X.p.485; 
Cooley,    730;   Jaggard,782« 

Tests^j-  It   is  very  difficult  to   distir^uish 
in  'p^l  cases  what   is  vdaolly  a  piblic     nuis- 
aiice  ^    and  on  the  other  hand  what   is 
•oureJ,y  prl-'/akec     The  following  tests 
have  been  suggested: 

1^   Indict  ability,  -and  this    is   usually 
a  matter  of  positive  statutory  pro- 
vision,  though  the   definition  in 
naixy-  cases  depends   on  the  common  law« 
Jaggard,782. 
^*   Possibility  of   affecting   or   annoying 
t}io  public   in  its  rights,   and  not    ' 
the  number  of  persons   actually 
affected.    16  Am.cc  E«  Enc.   931. 
3.   Place,    -  A  public   nuisance  i^nist  be   in 


TO     '-'  , 
a.-  H 


;':oi.  (,'■■•  fore 


.V: 


:^- 


q'  bT, 


tHj 


Ken  J 


.^rli^ 


X.q.¥. 


t  X."         ''^  J..  'M 


V,    .  J.  U  #     ^  "ky 


0  ii ; 


to  J 


-e:.  'A 


-^    i»c£w  .Jbnari"  i'ar  ;o'.  dif^  , 


■':frSH8i  erf^ 


/.  ,noifc! 


r^ 


C   0   0   L  :~:  Y      0  II     T   0  R  T   S.  24 


a  public   place, or  where  tae  public 
frequently  corf  regate  ,or  where 
numbers  of   the  public    are   likely 
to   come  within  the   range  of  dcks 
its   iiifluence.    16  A)a.,?c  EeHnCo927; 
(c)   liixed,-  those   that   are  both  public   and  private; 
they  -produce    injury     to  many  or    all  the  * 

public,    and  at   the  same  tine  a  special 
and   particular  injury  to   private   rights; 
thereby  ■..lalci n^'];   t]io  wrorgdoer  liable  to 
indl  ctment   and  punishment  by  the   public  , 
and  to  a  suit   for  damages  by  the  person 
injured.   Wood,iIuis.'mces   14;  Jag^jard  783. 
2.    As  to  the  thirds   affected,   nviisanoes  are 
(a)   To    real  property,.  Coo  ley  672. 

(1)  Corioreal,   by  invadiiTg    it   or   interforirc 
wit:i  its   use: 

l«Overhai\^inG  buildings   and  trees, Cooley   672. 
2.Pilt]Ty  percolations,    Cooley   672. 
S.Percolatirc   waters,    Cooley   673. 
4. Deposit 3   on   land,   Cooley  675. 
5. Leakage  from  pipes,    Cooley  676. 
e.Burstini,    of   reservoirs,   Cooley   676. 
7.Fallirc   waters   and  snows,   Cooley   681. 
8. Fires,    Cooley,   700. 
9»:Jlxplosive3  ,    Cooley  705. 

(2)  I:\co  i-po  real, -interference  witli  easements  ,G:C. 

lolnterf erin,-^-  with  the  flow  and  condition 

of  waters.    Cooley   682-706. 
2.  Interfering  with  support.    Cooley  706-708 
(^)   To   per3o:ial  property,  &c.  .-Diseased  beasts, 

.":c.    Cooley  724. 
.(c)..  Persons,    causing  the  i  personal  discomfort, 
or   ondangering  their   safety. 

1.  Noise  , dust ,  smoke  ,  odors  ,&c.    Cooley  708-16. 

2.  Mental  disquietude,    Cooley  716. 

3.  Invitation  into   dangerous   places.    Cooley   718. 

4.  Thirgs  vAiioh  threaten  calamity.    Cooley  722. 

These  are  to  be  considered: 

In  t]an   c:\r>'   lav;  a  private  nuisance  was   limited 
to   -■  i.iuriOL;    .-.one   to   a  man's   freehold, -or  as 
Blacicstone   £j;ys    "anythirvj   done  to  the  hurt    or 
annoyance  ot  the   land,   tenements   or  hereditaments 
of   another"  , without   justifiable  excuse;   the  modem 


sjq   0. 


>j^ 


5j>: 


Z^. ': 


'not":-^:: 


0..' 


::.-o,   v.v^'^'^-'^-'^ 


97  ■■'   Ae:A 


rr-\ 


.'■^ 


:  fi-^'-l2,^--i:    oT"  u'' 


:'..x-. 


>^'■^ 


^^■ 


;co"i:: 


•'■■f '  S' 


.1  .  V  •  J-  s.'  V  J  .J    ■' 


W  C   0  0   L  .  ;  Y     0  II     T   0   ii  T   S    •  25 


cases    do   not    zo   liniit   it ,    and  t'.iere  are  now  an 
"iiifinito  variety  of  woyc,    in  vdiioJu.  one  -lay  "be 
annoyed  or   i  ipeded  in  tlie  enjoyment   of  his   rights." 
Pollock  491.    Coole-y  67  2. 

To  Corporeal  Real  Property: 

1.  Orerlianoiiii;' thirit^s  ,-•   ''If   ^W  Pa-rt   of  one's  Touildj-iTg, 

tiaouc:-'!  it  "be   only  an  upper  "bay  window",   or   part   of   the 
roof,    or  tlie  eaves,    or  tiDoucli  the   linCs  of  treeo  near  ■ 
the  line,    extend  over  the  neighbor's   line,   thou^-h  no 
da:n-i{je   is   done   or  anticipated,    it   is   a  nulsajice  for 
whioa  an  action  lies,    or  wiicn  the  neighbor  iias  a  right 
to   alDate.    Goolej'-   67  2. 

2.  yiltl^y  'oex-colations ,   throuc;h  the  soil  coiiiLix^   fro-i  depos- 

its on   a  nei'jh'cor's    land,   whether  they   are   c?ue  to'  neg- 
ligence  or  not,    are  nuiseunces  when  they  injure  the 
well, cellar >    or  aiiy  otlier  part   of  the  adjoining   prem- 
ises.   Cooley   673. 

3.  Percolatiay  waters,   which  drown, or   render  the   land  of   a 

nei^^hbor  un;)roductive ,    or  which  weaken  or  r.ial<B   daiTip 
and  unhealthy ,    the  walls   of   his  huildiiijis,    result  ins 
frou  throwing  the  water  upon  adjoinin;   land  in  such  a 
place    and  way  as  to   cause   such  harm,beco;.ae  nuisances 
to   such  property.      Cooley  674-5. 

^4.  Depp  sit  3  upon   land,-   if  riia.de    .iireotly  upon  the  land,    are 
trespasses;  hut  for  one  to  do    ?ny  act   off  the  estate 
which  shall  cause  anything     to  he  carried  or  thrown 
upon   it    is    a  nuisance;    suclo  as   depositing    refvse, 
aand,   eai^xh,  .r:c.into  streaas  vrhere   tlaey  will  he   carried 
on  to   the  land  of   anothei'  and  deposited  tl^ere,   whether 
under  water  or  noc.      Cooley      676. 

5o   Leaj^f^e'from  water  pipes,-      if   injuries   result    froi.a 
these  catifTay  ■■■^'aen  the  p^pes    are    in  the  lawful  use 
of  an:.h'^;',    it   seems  that   liability     de-^^-'ds   only  on 
negligence,    and  not    otherwise.    Cooley   67  3.^0 

6.  Bursting   of   roservoirs,-     In  the  leawiing  "f^nglish  case 
of   Rylands  vs,]7"letoher,    it  was   held  that   a  party 
bringing  and  s'l^oring  a  large  body  of  water  upon  his 
own   land  in   an  artificial    reservoir,    "whica  injures 
another  by  breakizig   away  in  consequence  of   orjgiaal 
defects,    of  which  he  was   ignorant,    is   responsible 
for  the  injury,    thovgh  chargeable  with  no  nejligenne^s- 
"ii"  he   collects   and  keeps  there  anything   likely  to  do 
mischief   if   it    escapes,   must   keep   it    in  at   his  pei-il''^ 


6  ■•.'■■ 


V.  I-       ■  ■■--■  :~B--i ::•■■:        ■        ...  u.   -.ili; 


■-tK'.f  !*..'H*^  .•■ 


'■  «?€rf-'-ife'vij3W     .11-     V  j/»jC 


:  .,.      -  ..,.•■  r  ■'  *  '  " 

.aeon-,-.    .  :  . .-:.,      .  -c-. 

i  r-  i  .r^>'?"i?;f»  PCX '  ;       -  ■ ,"  #m^y^  - ' '  ■ 


h>i 


C   0   0   L  ]^.  Y     0  IT        T    0   R  T   S.  26 


111  thf3   l?,ter  case   of     ITicb.ols  vs.   'larsland,    it  was 
j.Gld,   hov/ever,    if   t-ie  broalcin';  was   due  to    tiie  act   of 
God,    or  of    va  i  idopendont   t'lird  person,    for  which  the 
dof  endent  was    in   no  w\y      resToiisilDle,    there  "      .    ' 
^vould  he     no    lia"  iliV*      The  American   rule,   however, 
seo'is   to    plant    t  yo  liahility     Oii  the  {ground  of   nQcligorice 
only,    either  in  fie  cons triict ion  or    oi^"bseq\.ient   atten- 
tlon.      Cooley   676-6aio  . 

7.   Fallin;:  waters  and  snows :   While   one  has   a  ri^ht  to  pro- 
tect "lis   own  -orsniises   ac;  linst  the  fall  of    r?.in  or   snow, 
yet  he  owes  th3  duty  to  his  nel^hlDor  to  use  care  not 
to  har:i  /lim.      If  therefore  he  constr\icts  his  buildinc 
so  as   to  cast  water  theref roi  u:)on  the  land  of   his 
nei^iihhor,   he  co  .t-iits    an  actior^ahle  wrong;  hut    if  he 
puts   proper  eave  troughs  upon  his  huildii-^S)    and  keeps 
then  in    oroper  order,   without   nec;ligence,   he   is   not 
liable.    Cooley   681. 

8«   Fires :    St   coi.ion   law  it  was  th")   duty  to  keep  fire  upon 
one's   own  preiTTiies,-   it  heinu   ^  danc::erous  element, 
it  was  th3  duty  to   keep   it   at   one's   peril,-  and  liab- 
ility   attached  whether  its   escape  was   due  to  necliSQ^^ce 
or  not.    ?ollocl:   616.   Jac^ard  840.   The   statute   of  Anne, 
6  Anne  c.31,    Sec .67,   charged  t.iis  as  to   dmoestic   fires; 
and  now  ^jenerally  the   liahility   is  hased  only  on  nqg- 
ligence;    it  hein.;    dangerous,    due  care  ..leans  a  hi:;h 
di^ree   of  care  to    prevent  hana.    "The   ^ist    of  the   action 
is  ne   licence    and   if   t^iat   e^.ists    in  either  of  t/iese 
larticulars"  ,-in  ti  le ,     lani^er  and  attention-   "and 
injury    rea\  Its   i-"i  coasequeixje  tlaereof ,   the   liability 
attaches,   "Tliether  the  proof   establishes  ::;ro3S    neclisence 
or   only  want   of   ordinary  careo "   Cooley  701. 
Fires  CO  \  lunicated  by  :  lachinery:    Liability  here   is  based 
on  ne-li^ence  also;    "but    it    ij   nej licence   if    those 
e.ioloyinc   sue::,    i-^xihinery  fail  to   make  use   of   a  :)proved 
ap-:)liance3  for   arresti::c   sparks,    or   if    the    achinery 
by  reason  of   bein::  unsuitable   or  out    of  order,    is   likely 
to  scatter  fire." 

In   so-iie  cases,   as   in  the  use   of  railroad  enjines, 
the  fact   of   a  -ire   is   pri  la  facie   evidence   of  neg li- 
cence,   and  will  be   sufficient,    if  the  compare   can  not 
show  care  to   prevent  sucli   a  result.    Cooley   702-3. 
The   sa:';^   rule  lias   al  io  been  applied,   t]ioujh  not   ^jener- 
ally ,    to    e.:plosion3   of   boilers.      Jooley  704. 
It   is    nejli;i'ence   also   in  railroad  co-ipanieg  to   leave 
dry  jrass   and  uatorial  wlicre  t.iey      are   liable  to   take 


■•^'^;:^:'^'  1:     --",'^^;  ■'■^•'  '  '     '■■■    ' 

.:  '■'-■-  ■  .^ix: 

■•      ■;  •        ,-•--.■    ■- iJjii  ;-;;;.                         .:;       -    .'.iii.: 
.  ..<>r'.riA.    .■       ' :'     %'-    ■■■  ■'.I       '■■^••.'■^-  vviiv    =oJ.-    -:-l^<, i.i^;  Ti>: 

-n.       c.-.  Yxni;  ^lcfc.iI"esit^■\;IXr?lerYP■:  :  .yjjr.v. r.x ■ 


-■^fb-h:^v  "-rj-    ■                ...    _: ..J 

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■  ir  .■'£X~T©..:nr;.^  ■  ,ef 

:ict  ^-i-,.'•'e-IJRd■^'-^..^;+^/:f• 

y:^ti.X;d.,: .                   ')rrrii!!? -^c  t»!Eor  iip!;©?::^. 

:M*-f -i  .  c^ivjF-c-j                l 

o®Sf!   -J  L/jyar  ?:<.;.&Ci;  •            .     "    ,  ■j.i?'?' coa; 

:5^;J-jc.- 

-IC^  •              ;            "fNT-jPOt:'-/' 

.      -                                    -,    TO-v 

iMsfOoo  ■          oc«;«5 ■  ■  • '\^ ■ .          •.'■-.•  :xf'^'-n-X> 

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yt?.'. ..';     11  •??.             ^er    icr.i.c .  ;. 

-                --i  no. 

'''3'&VCit'Jai:'i'C0et                                 If  jr."  ';■  \?r;jT5f».f  tjaO' .                   - /SlJ.'Tcili' ■]■.'' ■ 

'7»:«C-l:in'3EurV    &»'{J'    -X..;    .'i-.   , ,_:.  17.  "■. ." . 

®ffir  ri 

■•;■;■■"'"'. (I  '^'■T''    *^I'SST;;'"'^0  "^:?w-'    .r;;   ^  _. 

7;  'H.X'^T''' 

"'l&av.'. 

( f:ef:.:ln9oijir  cnlx.f    : 

a;x  Gi-.:;? , ,  QZ^'io:  ©fi;oaf-r.a.i. 

-.'JL^®*'      0   esr.    ■  ' 

■.-.,;   ■:!'0^''  -  'Xdt 

*c^;;n.o    ^;^jf^--iC;<; 

.-■              ,var-^;' 

i'?>S'^r  "''"■~.;    .                                            ''■. 

.  'f'?:*!;: 

V/  C   0  0   L    ^  Y     C  il     T   0   R  T    S    .  27 


fire,-  t'ls   duty  liert-  to  use   care  beiiv;    on  the  ooii^jemy 
uid  not    01  the   land  owner.      Cooley  703. 

0.  ?iro   amis   and    1:: Plosive 3,-     Li?]jility     here    is  bsscd  on 

ne  :li,:;o.joe,-  hut   the  use  heiu;   dance rous  t~i?   care 
■Tust   he   -oroportionud   acrco  rdiixjly.      Cooley   705. 

To   Incorooreal  Real  .?ro^ervy. 

1.  Interferinj  with,  the  flo^v  and  corditlon  of  waters: 

■Jaters     viy  h'^'   clas   ifiad  into 

1. Surface,   whicli  are 

(a)    oheet  waters,    not  flowiu;   :n  streaias. 

(h)    Stream,-   flowin-    in  c'lannels   or  water  courses. 

3.Sul-)terranean,-  those   holow  thT   surface,    a.id  tliese  are 
(a)    J'ercolatinj  ,-iiot   flowi;\j    in  streais   or  defined 

channels . 
(h)    V\feins   or    cnaraiels j-in  Icnown  and  defined  courses. 
As  to   the  flow  of    surface  waters,- 

(a)Sheet     waters,    not    f lolai  ;   in  defined  ch-iniiels, 
the    -general   r\ile    is  that      he  u-pon  whose   land  it 
falls  has   a  ri:jht  to  keep   it    if   he  chooses,-   so    "if 
:he  lower  proprietor  is    deprive 0.  of  t]ie  ho-iefit    of 
the  natural  flow,   he  has   no   re.aody,"   Cooley   682. 
So,    too,    on  the   other  liand,   by  the  coi-iion  law, 
one   0.1  wl'ose   land  it   falls  lias   no   ri.fat  to  have 
it    run   off  over  the   ]and  of  the  lower  adjoining 
owner,-  hence  he     lay     by  barriers  ward  it    off 
e^-en  thou;\i  it    is  :.Tade  to   flow  upo.i  tho  land  of 
his   nei  jhborg,    to  his    loss.      Cooley   683-4. 
The  Civil   law,   however,   :;^ave    the   o-vner  o2   the 
hi  :her    ;rou:id  an   ease.ient   to  have   th^  water 
flov;  off  upon  tlie   loArer  ^jround  in  the   .latur.xl  v/ay,- 
but    denied  tlie    ri.;lit    of   th?:  lower  o'7ner  to   have 
it    G0..10    if  he   iieeded    it.      This    rule    is    ao)lied 
j'j         i^T   so  ,10   of  thT  states.      Cooley   384. 

Still   anot]ier   rule,    applj.ed   in   a  fe-v  states, 
recojnizes  cross    easenents   in  the   o-niers    of   the 
adjoiiiin;    -oreiiises ,    ^v:?ereby  one  ha^   tho    ri^ht  to 
have  tl:^   surface  v/ater  jo ,    and  the   otlier  the   rijht 
to  have    o  .  '  water  co  le,    on  the   land  t;iat    lies    at 
th3   lo—or   l^vel. 

In   re'';ard  to   drains,    either  p?xty     has  a 
rijht  to   .at her  the  v/ater  that   falls  upon  his 
own   land  into   drains,     ^nd  turn  t'lei   i.ito    .1  r^atureil 
streaa  paisi.itj   through    lis    land,     uid  tiiit    of   ad- 


.:r<t: 


s::  ■:  ■    ' '  . 


•u- 


■    X 


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f  1x5  X.  oxi-v; 

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I.ix 


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r-vX.C*X.w 


C   0  0   L   • :  Y     0  N     T  0   R  T   S  '^  -  •  28 


joiriiy   proprietors.    tliou<;jii  the  lower  proprietor 
is   iryured  "by  the   increased  flow.      Coolay  68S^5. 
But  this   I'lght  does  not   include  the   right  to 
.   coUect   and  discharge  in  incraaaod  qunantitiea  at 
any  otliar  place,  wber©"by  the  waters  are  thrown 
upon  the  land  of   ajiotJber  in  an  unnatural  way.. 
(h) Stream  waters. -     that   flowi;-:^  in  *  definite  channel,  -v'] 
having  a  bed,    sides  and  hanks,    and  usually     (JLis-       ""  / 
chargirr;    itself  into  another  streai-:^  or  body  of         •"  •' 
water.      The  general  rule  here   is  that   tbo  lower 
proprietor  has  a  ri^jht  to  have  the  water  come  .'; 

in  its  natural  way,    aubstantially  undiininished  in 
miantity,   and  xinjaurt   in  quality,   from  the  proprietor- 
above;   and  on  the   other  hand  th«  upper  proprie- 
tor has  a  right  to  have   it  go  on  without  obstruc- 
tion.    More   particularly, 

(1) Nature   of  the  r3ffl.ts.     The  rig^jts   are  not 
rights  to   the  frate'~,  but  to   the  use  of   it 
as   a   stresun,    and  the  wliole  of   it  ,    in   its 
natural  state,    either  between  adjacent  owners 
on  opposite   sides,   or  between  upper  and  lower 
proprietors.      Coolqy   691. 
( 2)  Appropriation,   There  can  be,   at   cou  ion  law, 
no   exclusive   ri^jhta   acquired  by  prior  appro- 
priation;  this    rule   is  by  statute   or  custom 
nsodifiod  to   jome  oxtent  in  the  mining   states, 
or  those  vrhere   irrigation  is   necessary. 
Cool.vv    690. 
(3)B1  -orsion.   Any  proprietor  bae   a   right   to 
divert  IBae   streaa  upon  his   ov;n  land,   pro- 
vided he   returas  it    into  the  natural  channel 
so  as  not  the  injure  the  lower  proprietors. 
Cooley  692. 
=  (4)Dg-t;ention.   As  a  general  :rule,   eax;h  proprietor 
is  entitled  to   the  steady  flow,  yet   it  is   not 
unlawful  to  gather  it   into  reservoirs,   for 
a  useful  purpose   in  good  faith>and  without 
unreasonable   interference  with  the  lower 
proprietors.      Coolgy  693. 
(5)Dlninution«   The   right  to  use  the  water  for 
do::nestic    purposes  , -for  the  fa.iily     waa  ts 
and  for  domestic   animals, -and  for  irrigatii')g 
and  manufacturing,-   if   it    does  not  essen- 
tialli'-  diminish  the   volume,    is  clearly   re- 


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\7  G   0  0   L  -^  Y     0  il     T   0   R  T   S.  29 


0  0,';  -.izer"..      And  it   'las  Toeon   said  tli  i,t   one  nay 
for  the  use   of  liis'fainily     and  hia   stock,   use 
it    -ill  if   necessary.      Tliis   is    dou'otful,    and 
it    is   iidt  allowed  in  other  cases. 

Cooley   695.      23  Ai:i.&  S.    "3nc,    953 
But  what    |.s    a  reasonahle  use    depends    in  a 
large    measure  upon  general  or  local  custOiis. 
:Cooley   693. 
(6)?0Tjlir^-:     The  general    rule   is*  that    the  pro- 
prietor lo^is  the   right   to  have   the   stream 
cone   in   j,ts   natur;xL   state,    not    absolutely   so, 
but    substantially   so  ,   unpol-uted  by   amy  un- 
reasoriabie  use   of   another.    "The   re  as  onab  1  o  no  s  s 

01  the  use  nast   determine  the  right,    and 
this  nust   depend  upon  the   extent  of   the    det- 
rinent  to   proprietors  below.      If   it   essen- 

t tally   i r.nai rs  t}xe  use  below,   then  it   is 
unreasonable   and  unlawful,   unless   it  is   a 
t'lin.-;   altogether  indispensable  to    ary  bene- 
ficial use  at    every  point  of   tie  strean, " 
Cooley   699. 

But   here,   as    above,    vib.r\.t   is    reasonable    is 
generally  a  rr(.iestion  of  fact,    depcxidir^  upon 
the   circvi.-ist-",nces   and  the   customs   of  the 
country     or    locality. 
(7)gloodi}.x; :    At   co:'.Ti:ion  law,    .and  yet  without 

igreoient   to  that    effect,    a  lower  proprietor 
has   ao   ri^;;ht   to    throw  water  back  upon  an 
up"OGr  -;^ro"_TEsrietor,-and  to    do    so    is    actionable. 
Coolqy   695. 
In  short,    perhaps  the  general   idea  of   the   riglits 

'of    riparian  proprietors,   adjacent, 
"  opposite,   upper  or  lower,    in  the  use   of 

a  flowiiiE;    stream,    are    so..icv;hat   like 
those   of   tenants   in  coi'inon,-  each  havi":g 
a  rioiht   of  use  consistent  with  that   of 
all  the    rest,   but    no  furtl:ier. 
As   to   3u'''^terranean  waters, 

(a)    Percolatirg , -there   is   no   right    in  these, 
or  their   exclusive  use   or  appropriation, 
in  one    ovner    as  compared  with  "tliat   of 
the   adjacent   owner,    that  gives   a  right 
of   action  for  ?my    interference,    except 
throiic;h  pollution   .    This   rule   applies 

also   to   the   oil,    and  gas  found  below 
the   surface.      Cooley   689. 


^Sii     ^-^ 


Jx. 


ii   >?.i:ne, 


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V/  COOLjI'YONTORTS.  3C 


(To)    Veins   or  cliannelF  ,   wlien  known,  (but   only 
when  known  to  "be  flowinr    in  defined 
cliannels)    are   subj3ct  t;)    i.h-r.    rules 
applyirc  to    surface    otroamg.    C do ley   690. 
2.    Interfering  wit'i  the   rif^ht  of  -i^i'.iSpcrr-:'  " 
These   are   either 

(a)Later-.l,    or  the   ri^ht   to   hsrre  one's   land 
suppo.rted   by  that    adjacent  to    it.    The 
relies  hero  arc 
1.    One   ovT'L'ior  of  land  lias   a   ri^t   to  have 
it    supported  in   its  natural    :;ondi' 
tion  "by  the   adjacent   land;    ?/,;,-!  if 
this    is    interfered  with  hy   the 
adjacent    owner  whether   ne-jiligciitl/ 
or  not,    an  action  lies.    Coolcy   706. 
2«    This   ohligation  is   liniitcd  to    the 
au^port   of    the  land  itself,    in 
its   natural  state,    umvei^hted  by 
buildiiTgs;    in  tho   latter  case  no 
liability   arises  frov.i  darnagcs    re- 
sultii-^-   f ro:  1  reuToval  of  support 
unless  such  rciiioval  would  do   dp-mage 
if   the  buildii:^^   wore  not  there;   but 
when  land   is  weighted  with  buildings 
there   is   a  duty  to   use  care   not 
to  injure  them  by  carelessly 
reiTt)viiTg    support , wit ]aout   ■2;ivii-g 
notico   to    their  owner.    Gooley  706-7 
As   stated  in  a  syllabus  to   the 
leadii-;^   case  Hancock  vs.    Thurston, 
12  xlass.  220,  "tho   owner  of   a  house 
built   near  the    line  has   no   action 
for  damages   done  by  an  exaravation 
nadc   in  the  adjoinir^;   premises,   where 
the  dai'.i-ngc  would  not  have    resulted 
but   for  the  weight   of  the  house", 
(b)Subjacont   support,-  Where   one   owns   the 
surface   and  another  the  subsurface, 
the   latter  is  bound  to    support    the  land 
above   and  all  buildings  then  upon  it. 
And  it    is   s onetimes    stated   "the  land 
shall  be   supported, not  nerely   inits 
origiii-^.l  condition,   bi't    in  a  co.idition 
suitable  to   any   of    V.'.e    ordinary'-     uS':.'3 
necessary  or    incidenLal  to    its    reason- 
able   onjoytuent."   Gooley  707;   Bigelov/  252. 


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w  coo  Ij^ZSY     ONTORTS,  31 


On  tlie  other  hand,   Jaggard  sa^ys  tlie 
•  r j^ht   extends,  only  to    the  support 
•  of   the   land   in   its    n^.tu^rij  "etato, 

unburdened  hy  "buildlngso   Ja^card  753. 
A  similar  ri^jht   exists    c.i^  to    ihe   support 
of  upper   otor.'.es    of   ■buildings   by  t]ie 
lower  storioG.    i!igelc-.v  ?52. 
(h)   To   personal  property:    "Domestic   animals  which  have   an 

infectious  or  contagious   disease  heco  ae   a  nuisance 
when  the  care   and  .;ianaeement    of    them  by  their 
Qv/ners   is   such  as  to    expose  the    domestic    animals 
of    ot:aars   to  t  he   infection  or  contagion;   the  liab- 
ility  is  based  on  neglisence   or  bad  faith," 
Goo  ley  724. 
(c)    To  ?erso  is^,- 

I.    "lany   of    chese   are  due   to   noise,    jar^  of_  machinery, 
dLi3t_,    smoke,    odors_,  &c.      The  ger^eral  rules 
apply ii-^i  here  are 
I.Mali  clous  acts  ,-   If  the  annoyance   is  wantonly 
c'l.used  ty  malice   or  wiclcedness,    a  slight 
degree   of  inconvenience  will  be   sufficient 
to    rendor  it    actionable.      Cooley  708. 
2. Useful  employments  ,  -•  Inthis   case  the   liab- 
ility    depends  upon  the  unr e as ouabl ene ss 
of   the  use.      Here   the   followi^;    sub- rales 
ap  p]y : 

ia)'Every  business   should  be  carried  on  in 
a  suitable  and  convenieno  place, and  by 
convenient   is  meajit  not   a  place  which 
maj^r  be  convenient   to   the  party  hiiaself , 
loolciiTg   at   his   interest  merely,   but    a 
place    suitable  and  convenient  when  the 
interests   of    others  are   considered." 
Cooley  .^  .        709 o 
(b) Trifling   incoviveniences  must  be   submit- 
ted to,    v\tLen  that  which  is   done   in  a 
usefLil  employment,    in  point   of    loco-lity 
is   not   unsuitable,    and  in  point    of  man- 
agement   is    not   unreasonable,"   Cooley   710. 
(c)T:ie    inconvenience,   before    it   is   action- 
-'ble,   must  be   such  as   to  materialH-y 
interfere  vrith  the  physical  cOx:rforl:   of 
hu  lan  o:iistonce,    not    according   to    ele- 

.  it ,    dai:ity,    or   fastidious  modes   of 
llA'ing,   but  to    the  plain  an!  ordinary 


+-. 


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y  COOL^YONTOilTS.  32 


1.10  des   oS      life.      Cooley  713, 

(d)lt    is,   however,    not    necessarj,'   that   the 
f,nnoyanco  be  actually  injurious   to 
health,--   it    is   sufficient   if   the   ordi- 
nary corifort  and  convenience   of  life  Toe 
r.iaterially   interfered  with.    Pollock  496. 

(e)The   -^ xct   that   another  nuisance   existed 
in  the   same   place,    or  still  continues, 
i?   no   justification  for  settin^^  up 
another.      Pollock,   498c 

(f)Neither  is   it   justified  hy   shcwinc 

the  "business  was   laudahle,    or   otherwise 
inuoc  ent  =   Po  Hoc  k ,  4  99 . 

(gjSo,   too,    io  loakes   no    difference   if  the 
nuismice   e:risted  "fcefcre  th>j  plain-ciff 
■beccme  the   owner  or   occupant,   unless 
it  has   Cotpj-ned  a  right     to  oxi st  "by 
prescription  or  piiblic  grant.      Pollock 
498;    or  a.s  Judge  Coley  puts    it,  "it   is 
of   no   i"iportance  to  the    right   of   action 
that   the  plaintiff  lias  coiae   into   the 
nei^;liborhoou.  since  the  r.uisance  was 
created", -Coo ley  7  29-30.    Or,    as   it   is 
soinetii.Tec   said,    "moving  to   a  nuisance" 
with  knowledge   of   its    e^cistence   does   not 
disentitle   the  person  so   doii-^:   fro  i 
coaplainirig. 

2.  "lental   disquietude   alore  ,   without    any   injury  to 
"^property,   health  or   person, -such  as  would   result 

to   all  alike  who  would  cone  within  the   influence 
of   the  acts  complained  of,-  is   net    a  CAUse   of  ac- 
tion for   a  nuisance.    Cooley   716.. 

3.  Invitation  into   dangerous   plac es , -  The   owner  of   prop- 

erty upon  which  otli3rs   axe   expressly  or  i.ipliedly 
invited  to   enter  must   exercise   ordinary   care  to 
keep  the  rremises   reasonably  safe  for  the  visit,- 
if   injury;-    results   from  lack  of  care,    an  action 
liea.      But 

One   is   not    invited   simply   cecause  his   entrance 
is    not   prev ent ed. , -the re   is   no  duty  to   protect   a 
trespasser.      The   duty  attache.^  to    occupancy 
and  control  of   propert:y  ,    and  not   to   ownership 
alone,    and  hence   belongs   primarily  to   the  tenant, 
unless  the   landlord  assumes  the  duty.      Cooley  718. 


.CIV 


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'U  COOL  'Z  r-       0  IT        TORTS.  33 


4.    Tliiiigs   threat onl.g;   calamty ,-3ucli  as   totterirc 
ouildiiigs ,    stori:i'7   of    e;:plosiv33,    undertakin,;;; 
dcu:^erous  worVa  near  higliv^ays  ,   witliout    ?rovidir\j 
protection  of   passers-Toy,-   the  party   endargered 
oaii   sue  heforo  the  calai.iity  happens.    Cooley  7:^2. 
rv.   Wlio   is   responsible:      Hesponsihility  i-xxy     exist  either  for 

(l)Croatlrc,-  TTlioevor  creates   or  causes  a  nuisance 

is    liable   for  tho  damage   it    doos ,    thou^-h  lie  cre- 
ates   it    on  the   land  of   another,   where  he  has  no 
rin'ht  to    enter  and  ah  ate   it.      Cooley  7  27. 

(2) Continuing,-  Whoever  'cnowirt;3y  allowLi  a  nuisance 
to  continue  upon  property   in  his   possession 
and   control,    tl.iough  not    created  hy  him,    'becornes 
liable  for   th3  da  lo^e    done   -  the  continuance 
and  every  use   of   that  which  is   in   its   erection 
a  nuissnco   is    a  new  nuisaunce.      Cooley  724-727.  • 

(a)  As  "between  landJLord   and  tenant,    the   latter  is 

presuinptivel;''   liable  after  he  lias   notice   of  the 
existance    of   such  nuisance,-  but    in    nary  cases 
or  usually,   when  the  nuisance    exists  v/hen  the 
tenojicy  co  i;eix:es   the  landlord   reiiiains   liable; 
thou:^!  it    is  said  the  landlord  relieves   hin- 
self  fron  liability  on.  account   of   defect   in 
premises,    if  he    ejcacts   a  covenant  to  repair 
fro  1  t'-.e    tenant.      Cooley   724-5. 

(b)  A3_  betwee::  -jrantor  and  grantee,    the  {^rsxitee 

generally    I003   not    jecone   liable  imtil  he  has 
liad  notice   of   the   existence   of   the    nuisance. 

(c)  A  uaero   -^^-ent   or   servant   is    not   liable,   unless 

t!"e   /.uisance    ia   due  to   hij   person^J.  wrongful 
act   or  nogligence.      Cooley  7  29. 
V.   Who  can  conplain: 

(1)    General  rule,-  The   party  who   at  the  tiae   suffers 
the   inconvenience  caii  coiiplain,   whether  he  c  .''xie 
into   the   neighborhood  before    or  after  the   nuisance 
was   created.      The    reasons  for  this   rule  are 

(a)  If  the  grantor  could  have   eornplained,   his  grantee, 

unless  for  expresi*  purpose   of   litigation,   can,- 
else   the   nuis?jice  would  practic  \lly  destroy 
a  luan's    right  to   his   land  by    rgquirir^ 
him  to   sell  it    at   a  price   the   nuisance  had 
assisted   in   establishing*      Cooley  730. 

(b)  If   tho   nuisance   is   vjholly  ptiblic  ,-   no   lapse  of 

tine  can  give   it    a  right  to   exist    as    gainst 
the  state. 


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aexl  c      -     ,._  .  ..,_         _  ._  . 

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aeeInjL.-','elc£.iJL'd-ea   si-*  «rxti!i  J-  lac  "jE--{o: 


^  '^•^•0     0;tlW      .V 


\7  C   0   0   T   "1  Y        n  H        T   0   R  T   S    .  34 


(c)  So,    too,    if    it    is  both  puTolic    ?iid  private, - 

tliat   is,    -.Tirc'^d , -   its    lo^/-   coiitiiTued  existence 
Gives    it   no    rir^ht    as   agdnst   tlie  state,    even 
tliou2;li  tlio  state   does   not   conplain;    and  in 
tlais   case   any   individual  who   newly  co'ries 
into  its    influence,    and  ic   specially   injured, 
in   a  way  different  fro.i  others,    could   oloject; 
in  this  v/ay  some   individuals   could,    and  others 
could  not   couplain,    if   the   prescriptive 
period  had  elapsed.      So  on  the  whole   it    seems 
that   pub  lie   nuisance  that    does   special  injury 
to    individuals   obtains  no    right  by   lapse   of 
tine  to   exist    3ga3.n3t  any  member  of   the  pub- 
lic.     Cooley   730-31o 

(d)  It    is   said  that    the   right  to  cor-iplain  in  case 

of    a  private   nuisance  may  be   lost  by  the   lapse 
of   the   prescriptive  period.      This   io  :d9nied, 

however,    on  the  ground  that    every   day's   re- 
petition of   a  nuisance   is    a  new  nuisance. 
Cooley  730 ',738. 
(2)    Private   injury  fro  i  public   nu i G.anc e :    Rule,- 

"¥/lienever  one   -nanber  of   the  pi-.blic    suffers   some 
peculiar   injury  fro  i  a  public    nuisance,    differing 
from  that   suffered  loy  the  coi^nunity  at   large,   he  can 
maintain  action".    Cooley   736. 

To   do   this,    especially  in  the  use   of  public    ease- 
ments,   it    1:3   necessary  for  him  to  show 

(a)  Th.at   tho   easement    exists. 

(b)  That   he  has  been  obstructed  in   its  use. 
In  botl'.   of  these   cases    3,  question  arises   as 

to  what   tho  state  ^las   authorized;   for  so   far 
as  public    easements   are  concerned  the   state 
can  create,    or   abandon  them  at  any  trie, 
or  authorise   t-'eir  obstruction,    and  private 
parties   can  not   complain,   unless   some   private 
ri^ht  has  been  inJTringed.      Y/hatever  the   state 
therefore  has  authorized  in  the   obstr\xjtion 
of   these  casements,   unless   it  also  invade 
the    private   property     rights   of  individuals, 
is   la\7iul  and  can  not  be  complained  of. 
Cooley   732-6. 
VI.    Remedy:      The   ix)nedies    arc 

Hi)    Abatement  by  act  of   the   party   in  removir^j    it 

or  the  cause   of    it,    if    it   can  be    dono   Y/ithout 
breach  of  the  peace.      It    is    only  in  case    special 
dam:^e   is   done  that   a  private   right  to  abate   a 
r)ublic    n^iisance   exists. 


•:,iJ-'^Vi:.':i(t  i,  ■  ■■>:  i&J^t  :■■■■■  ■  '■ 

111    r^V'  ■,     -■:nfvf#rf^'    c'-r.r.         :J   ^.y^^Kl^'^ 

•H^f&i^o   Jb,: 

i_  ■-      ,  .    ^j   -1       ■.-   .        1. -  ■  ^'  c-t,*  .X-*V  -.■  "^  -..    .    X   . 

.    -    AA^-  -  -        •'•■-  ■-') 

8j  .o  A -•.,-■  •-'      " -  .-.  (j'C-y  ■     ,::l^.>,;^.r^j>^^vnI:;/,^.'',.c'^     '9; 

eF;vt?^-I^  •  •■^^^£-,   ::- ^;^  ■- ^c:■^; ;■•■■'=  ■ 

■■■e'}  ■  .    .    :..;:    ■■         ;:    .yC'^fe--  '  ;•:     ': 

-c^T.'j    eJ".'  ■■  •   ■  ■    ■      ' 

•  .^^SJ:  j&n  x^  3  (5^  .^2  J 1  t^^t- •■ "  \^  i-rifesa^"  ;■«; .  ■  9  *  J. 
,  to   L-::  .'     '■■  \  '.    tv'    .-  -:-    r:--'      .Ml. 


IV  C   0   0   L  .~1  Y        0  N        T   0   R  T   S    .  S5 


(2)  Injunction,-  Courts    of   equity   will   onjoin  the   con- 

tinuance   of  a  nuisance  v/?ien   damages  would  "be 
inadequate,      l^t   tliey   act  cautiousDy   es- 
peoi?,l.ly   in  interferin"  with  useful  and 
lawf  Li  1  ei  ap  loym  e  nt  s . 

(3)  Action  f 0 r  damage©,-   in  the  forii  of   an  action  on 

the  case-      This    is  frequently  ^'ranted 

when  the   harsher    renedy  "by   injunction  would 

"b*^  denied. 

(4)  Indict:.ient ,-  the  public    remedy  for  a  putilic    nuisance- 

followed  try  an  order  of  ahatement. 
VII.    ^iunicipal  corpoyatlons  :      These  are 

(1)  1:00  rpo rated  hy  char'cer  f^ranted  fro.i  the  state,    or 

organized  under  a  general    laiv  providing   for 
their   incorporation.      This  clothes    them  with 
the   capacity  of    actirig   especially   in  the 
on'-ners]iip  and  control  of   proper oy   as    indi- 
'■     vi duals,    and  of   perfor^nin,^  mary   other  fun- 
ctions,-  as  cities   and  villages. 

(2)  ?ii"blic-quasi-corpo  rations,-  those  that    are   not    in- 

corporated hy  the  grant    of  a  charter.   Tout 
have   some   of   the   functions    and  powers   of 
corporations  co. if  erred  upon  them,    such,   as 
contracting;,    suirig   and  beirg   sued;-  a^ 
townsliips  &  counties. 
As  to  these    (especially  cities  and  villages)    they 
are  to  he   considered 
(a) As   parts   of   the  governmental  machinery  of 

the   state,    legislatim;   for  their  people. 
(To)As   corporate  "bodies  j    executing   their   own 
plans,   and  dischargirig   the   duties 
s-oecially  placed  upon  them  hy  the 
state. 
■  (c)As  artificial  persons   owning   and  managing 
property. 
In  the  first   two   of  these,    (a)   &    (h)  ,    their  fuix- 
tions   are   purely  puhlic  ,   and  for  talcing 

improper,    or   failing  to   take,    action, 
thoy  are   not   liahle   to   individuals  suffering. 
In  the   tliird,(c),-   if    they   are  raanagirg   public 
property     for  a  puhlic    purpose,-  they   are 
st_".".  disohargiiTc;   public   functions;  "but   if 
they   are  usirg   their  pro  perty  for  ?. 


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W  COOL^YONTOT'.  ^S»  36 


orivate  -xii'pose,    t'ley     "bpcoine   liable   as 

individual  ovmrs.      Cooley   738-9. 
Su"^- rules  here   are 

(a) A  public   corporation   is   not    liable   for 

the   failare   of    its    officers   to    disclaarTrie 
orooerly  and  effectually  tlieir  official 
dut''ojo      Cooley  740. 

(b)'i"icy   aro   liable  fDr  failure  to    exercise 
di^G  care   in   executii^    arty   .vorlc  ordered 
by  tliera-   especially      if   for  the   particu- 
lar benefit   of   its   ovni  people. 

(o)The   duty   to   keep  streets   in  repair  in 
iixorporated  cities,   where  the  whole 
control  is   leiSt  to  the  city,    with  the 
power  to   provide  the  raeans  therefor,    is 
considered  a  duty  to    private  persons 
as  well  as  public  ,    and  the  city   is    li- 
able for   injuries   due  to  negligence 
therein.      Cooley  746. 
The   saine   is  true   as   to   sewers,    and 
sidewallcs;-  but   not   generally  as   to 
fire,water,   health,    and  police   depart - 
i.ients. 

(d)The   rule  as   to    roads  &c.    in  unincorporated 
counties   and  towns,    in  the   absence   of 
statutes,    is   different  fro.a  that    in 
cities,    and  they   are  not  held  liable 
f o r  neg lige at ]y  f  pj. li ng   to    repair. 
Cooley   742. 

But  there   is   now  generally   a  statutory 
liability      inroosed. 


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W  COOL']  YON        TORTS.  37 

CHAPTER     XS. 

oOo 

NON-PERPOKIArlc:^  OF   COinnilTIOlTAL  AND  STATUTORY  DUTI3S. 

Nature   of  the   right g :   The    rights    involved  here   are  usually  hrovcht 
existence  by  so  le   'i^ontractual  or   con^rentional  relation 
betweon  the   pr,rtiep  ,   v/herehy   a    specific   ohlig?tion 
■becor^ies   i.ijsned  upon  one  of  them  to  lohservs    some   special 
course   of     conduct   as    r^ards  the  person  or  property   of 
t]ie   ot'-ier.      In  addition  to   the  contract  between  the 
parties,    tlisre   is   usually   a  plajcirig   of   one's   person 
or    property  into      the  liands   of  the   other,    in  trust 
for   so-.ie   specified  purpose;   becruzse   of   this   placing   of 
person  or  property     into  the  truet    of  the  otlisr,    and 
its   acceptance,    the  la\v  raises  the   duty  to  use   care 
in  the   perf ori.iance  of   the   trust.      Cooley  7  50  = 
The   cases   of  tliis  Icind  are  those   of 

1.  Bailments. 

2.  Innkeepers. 

3.  Cornt.ion  carriers:    A,    of   freiglit;   B,    of   persons. 

4.  Telegraph  Co  ipanies. 

5.  Professional  services. 

6.  Services   requiring    skill. 

1.    Bailment ,-    "is   a  delivery  of  goods    in  trust,   upon  an  agreenent 
express   or   ii.iplied,    that  the  trust   shall  be   duly   exercised, 
and  the    ;oods    returned  when  the   purpose   of   the  bailment   is 
accomplished".    Cooley  750.      They     are   classe(?   into   those 
for  the  benefit   of    either  (1)    the  bailor;    (2)    the  bailee; 
or   (3)    both.      The  wrorr^s   done  are  accomplislied  throujh  neg- 
ligence  in  the  performance   of   the  trust   arising   from  the 
delivery  of  the  thirc  bailed.      This    requires   the   definition 
of  negligence, 
(a)   Negligence   is    "the  failure  to   observe,    for   the   protec- 
of   the   interests   of   another  person,    that    degree 
of   care,   precaution  and  vigilance  which  the   cir- 
cu  nstances  justly  demand,   whereby  such  other  person 
suffers    injury."   Cooley  75*2, 
Or,    as  has  been  very  well  c?efined  elsewhere, 
"the   inadvertent  failure   of  a  legally    responsible 
person  to  use   ordinary     care  under  the   circuin- 
stances,    iii  observing   or  jerforming   a  non-con- 
tractual  duty,    implied  b;^  law,   which  failure   is 
the  proxi-Tate  cause   of   injury  to  a  person  to  when 
the   duty  is   due."   16  Am.S:  E.    Enc.    389. 


•    c. 


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'V    .'■-.•■••■:    y*;*;^'^  ;;:^e/ti2^f  "^or- 


COOL'^Y        Oil        TORTS.  33 


(Id)   DeTreos   o^  neglige  roe:    It    is   usual  to    sa^^     that    there 
are   three   d.e:j;rees   o£  care,-  or  three   de.ijrees 
of   ne;li3ence   corresoondinc   to  them,    as  follows: 

1.  Ordinary  care   or  diligence,   the  want   of  which  is 

ordinary  negligence. 

2.  "Hlxtraordiiiary ,    or   o:vtre:ie,   care   or  diligence,   the 

want   of  w'lich  is   slight   negligence. 

3.  Slight   care   or  diligence,    the  w^xit   of  which  is 

gross  negligence. 
Ordinary  care   is  that  which  every     person   of   co:.mon 
prudence   ordinarily  tahes   of  his    own  concerns. 
'Ixtrarrdiviary  or  extrene   care  i3   sucV'.  as  a  very   cautious 
and  vigilant  ■;ian  would  take   of  his   own  possessions. 
Sli;]it  care,    such  as   a  .  lan  of  co.iion  sense,   hov/ever 
Tiiattentive, would  give   to  his    own  affairs. 
Cooley,    753. 
(c)    Rules:   Tuen  the  "'xailient   is   for  the  benef  io   of  "both 
bailor  and  bailee,   the  bailee  must  talce 
ordinary      can   of  the  thing  bailed,    and  is 
liable  for  ordinary     negligence. 
\7;.i3n  for  the  benefit   of  the  bailee  only,    then  he 

ov/es    a  high  degree   of   care,    and  is   liable   for      , 
slight   negligence. 
\^r.ien  for  the  benefit   of  the  bailor  only,   then  the 
bailee  owes   a  duty  of   slight   care   only,    and 
is    liable   only  for  gross   negligence. 
Cooley  753. 
It    is    doubtful  if   any  benefit   is    derived  fro^i  such 
a  classification  of   care  and  negligence,- 
for  t]io  benefit   of   the  bailor  or  bailee    is 
onl;^'-  one   of   .nany  c ircu.istances  goi.'g   to   taalce 
wo  the  duty   of  the  bailee.      The   care    required 
will  vary  not    only   as  to  who    is  to   be  bene- 
fitted,  but   also   as  the   known  danger  increas- 
es,   or  with  the  value,    or  with  other  circun- 
stojices,-  negligence  always  beiiv'   a  failure 
to  use  the  care  the  circu  istances ,    all   of  then, 
demand.      Cooley   753. 
*     A  gratuitous  bailee   is    liable   only  when  the  trust 

has  been  actually   assui-ied,    and  not  for  not   assuia- 
i:Tg   it;    a-i.l  per'iaps   after  it    is  assumed  it   can  be 
surrendered   if   not    injurious  to    the  bailor;   but 
dealirg  with  the  thing  bailed  in  a  way     not   con- 
templated  is  wroi-gful;    there   is   no   liability  for 


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\'I  C   0   0   L  -^  Y        0  N        T   0  R  T   S    .  39 


loss  due  to   tVieft  without  fault   of  "bailee. 

Cooley   754. 
So.ili^ients    for     r.tu al  "benefit    include   sucli  s,s 

■Pledge,  ■•  t"ie   i  "olied  uriderta'!d.;Tj  beinr;   to  keep 

rdfely   and    return  v^_ien  t]ie  de"bt    is   paid. 

Delivery   of  -x  tlir.nr;   to   a    leclianlc  ,    to   "be   chanced 

01-    '^paired,    tlie  obli2,■^tion  'oein^  to  use 
ordinary      care  and   skill  in  t]i3  work, 
and  return  vrlien  finished. 

Deposit   of  s'l'^in, -usually  with  the  privilege   of 
mixing  \vith  other  of    like  kind  and 
quality,    the   olDligaticn  loein:;    "to  deliv- 
er an  3q.ual  eur^ount   of    like  kind  and 
quality     on  deiiand,-  and  the   duty  loeint; 
to  use   ordinary  care.      But   in  ria^ny  cases 
of  this  kind  the   delivery   ."^uounts   to 
a  sale,    in  which  case  any   Iocs   whether 
fro  ,1  nev'lici'ence  or  not    is  on  the  ware- 
house lan.      Cooley   755--7. 
In  .all  hail -ants   there   is  tlio  duty  to   keep  v/ithin  the 

tenas   of   the  haili:ient,-  and   a  departure  there- 

frd*:i  usually   amounts   to    a  conversion. 
2.    Innlceopers:    At   co--Tion  law  :-iis  duties  were 

(1)  To   furnish  entertainment  to   travellers,   without 

discr:;:-!ination,    if    proper  fees  are  tendered  or 
secured,    and  the  person  is    in    proper  condition, 
and  there    is    roori.      Cooley  757. 

(2)  "Te   is    also  "bound  to    protect  hi' i  and  his  basijace 

as    .vi  insurer  a^^ainst    loss  by      any   ciuse   otlier 
than  the   act   of  God  or  the  public    eneiny,   whether 
'\\e  to  his    ov/n  ne::lis3nce  or  ndsconduDt ,    or  that 
of  his    servants,    or   of   third  persons,    or  fro.ii 
firos   or  thefts.      Cooley   758. 

(3)  The   liability  extends    lo   t'le  loss   of  lUf3cace  ,   clothes, 

money  in  the   pocket   or  t-runk,   horses    in  the   stable, 
or  the  cattle   of  the  drover,-   a:!.',  he  can  not    re- 
lieve hi -IS elf  by   postinj  notices   that  he  will  not 
be   SO    liable.        Cooloy     760. 

(4)  The   contributory  nejli^'jence   of  the  ;:uest    in  failing 

to   exercise    ordinary     care  for  his   own  protection, 
will   release  the   in;ilceepGr.      Cooley  7  61. 
(5) If  "le,    throujh  his    servants,   undertaJce  to   deliver 
'iJ^'J.'jace  at    stations,    the  liability  co.-tiiiues 
until  de3  ivory.      Cooley  7  61. 


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^  C   0   0    "i    ]  Y        0  II        T   0   R  T   S    .  4vO 


(6)  Lion,-   lio  lias   a  lien  on  tli*?  "bagsa^e   for   reasoiiatle 

ohaiT^es. 

(7)  Guest,-  tlie   liability      is  to  a  guest ,    one  who   is 

a  transient   traveller^    and  not   to   a  "boarder 
who   oontracts   for  a  definite  stay  at    specific 
prices,   nor  to   ?,  inere  visitor  or  caller. 
11  Am.3:  ^.   ^nc.    17-18. 
Note:   These  coi-iiion   law  liabil:ties   are  now  much  aodi- 
fied  "bv   statutory  provisions,    rllowii\i-   the 
innkeeper  to    li.dt  his   liability  'by  clviutj 
various   notices   of   reasonable  regulations. 
Cooley  750. 
3.    CoiTraon  carriers : 

(l)    DefTnitior )-   "one  who   regularly  undertakes    ,    for 

hire,    either  on  land  or  water  to   carry  goods 
and  passengers  between  different    places, 
for  such  as   offer",-  and  include   railrav/ 
companies,    express  companies,    stage  coach 
proprietors,    proprietors   of  boats   and  vessels 
plying   on   regiilar  routes,   wagoners,   carcien; 
bxit   not  those  who  have   no    regular   routes  like 
dra;.nTien  &c.    Cooley  762» 
A.    Of   f rei;j.t :    Rules,- 

1.  CoEETion  carriers  inay  limit  their   employment 

to   C-.Z2   or  more  classes   of   goods.    Cooley  7  62. 

2.  WitMn  t'le   liinits  fixed  he  Liust    receive   and 

carry  for  all  who   offer,   without   partialty 
or  discrimination,-  but  this   does  not  forbid 
special  bargains   at    specisG.   priceSo 
Cooley  7 62-3 o 

3.  The   obligation  assu  led   "is   that   he   shall  deliver 

at    its   destination  the  property   received, 
without    damage  while   in  his   loands ,    unless 
prevented  by  the   act   of  God  or  the  public 
enemy,   and  within  a  reasonable  time. 
Cooley  763-5.      Aii  act    of  God  is    defined  to 
be   "disasters  with  whicJi  the   agency   of  man 
has  nothing  to    do,-  a  direct   and  violent   act 
of   nature",-  negligence   of  the  carrier 
concurring  with  an  act   of  God  leaves   Tche 
carrier  liable;    accidental  fires,    explosions, 
strikes,  &;c.    are  not  the   acts  of  God,    and 
do  not   relieve  the  carrierc      But  the  unlj::-.rfal 
act   of   strikers   in  the  woy   of  'a  mob  or   riot, 


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W  COOLLY        ON        TORTS.  41 


iiiterferi-r;   witli  a  carrier,    arc  classed  as 
acts   of   tj.e    .Aiolic    3neiny,   and  relieve  tlie 
carrior.      Cooley  765,    noteu. 

4.  Tlie   co-iiion  law  liaoility   does   not   apply   in  all 

respects   to    railroads  as  carriers   of  live 

Steele,-   si  ice  viany   of  t^ie   perils   tberoof 

are    due   "  o   tae  niture   and  propensities   of  the 

aniiiials  taer.iselves  ;txie   ov/ner  is   expected 

tu  acaciipany   ar.d   care  for  t'leia,  -  the    railrosLd 

oo;:i,-)n..v'-   si-iply  funiishing   proper  cars   and 

motive    poi'/er,    and  carefully   -lanrv.-iijj   the 

trains.    Cooley  765. 

There   are   cases    to    the  contrary,   howevor. 

5.  Liability  as  carrier  "b6:;;ins  as  soon  as  the 

floods   aie  delivered  with  orders   of  sMj/ment , 
hut   not  v/Mle   await iaj    orders   fcr  shipment. 

6.  Liability   as  carrier  ceases  when  they   are  deliv- 

ered to    the  consignee    (or   if  delivery   is   to 
be  liiade   at  the  carrier's  warehouse,   then 
after  he  lias  been  notified  and  had  a   reas- 
onable tijie   to    remove  theia)  ,    if   the  contract 
is   one   of  throu^,h  carricge   over  its   own  lines. 
Cooley   7  66-7.      If  :;oods  are    received  to  be 
transported  beyond  the   line   of   the  carrier, 
over  other  lines,    tlaere  arc  two  views   oi    rules: 

(a)  The  "^n^lish   rule  whicli  ..Takes   the  original 

carrier  liable  as   such  until     the  :^-oods 
are   delivered  at  their   destination. 
Some   of  the  states   follow  this    rule. 

(b)  "^ut  th.e  A:-ierican    rule    is   usually  said  to 

be   that  the   ori^-inal  carrier's    liability 
as    such  ceases  when  the  ^oods    are   deliv- 
ered properly  to  the  connect in;   carrier, 
for  furfxsr  transpor-tation.    2  Mu^z  11, 
^nc.    859-860.    Hale  on  Bailments   463. 
B.    Of  Persons:    Rule- 

1.  Basis  of   liability.    "Eor  the   safe  transportation 

of   property;  ,    the  common  carrier  is    responsible 
as   i:  diirer,   with  the  exceptions  alreac^"-    stated; 
but    i  1  the  case   of   passengers  he  only     unde r- 
ta'.-^G  that  he  rri.  11  carxy     them  without   ne^' li- 
cence  or  fail  It .      Cooley   768. 

2.  The   care   required,   however,    is   "the  most  perfect 

care    of  provident   and  co-utious  men,   and  iiis 
undertalcir^   and  liability     as  to  his   passengers 


■■■;  o.b    .^'^a-rZ^j^'-Tf  Cv"  isU^je 
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£;oes  to   this   extent,    tliat   30  far   as  huiaaii 
foresi/^ht   an.l  care   can  reasonably  ;'TO,iie 
will  transport  the. i  safely".    Coo  ley  7  68. 
The   duty  to    carry     a  passenger's   baggage 
safely  is  nox'e   strict  than  the  duty  to   carry 
the  passenger  hinself  safely,-  for  the  former 
hxhQ   is    "iable  witlaout   nefUgence,    and  for 
the   lattor  only   in  case    of   nygligence. 
Gooley  7G9, 

3.  Liability  begins  when  the  person  presents 

himself  for  transportation  by  approaching 

the  place   of  reoepticn,   for  the  purpose,   as 

%t  tho   depot.    Coo  ley  770.  * 

4.  rhe  duty  here   is  a  duty  to  cariy  all  in  a  fit 

condition,   without    discri:.tLimti on,    who   pre- 
sent a  proper  ticket   or  tender  +he  proper 
price.    Cooley  771. 

5.  The   duty   also   extends  to  use  the  utmost   care  to 

protect  the   passenger  from  ill  treatiner^t  by 
employees  ,   or  f  ro:-i  violence  f  roia  any  aource 
whatever,    that    could  be   reasonably  anticipat- 
ed.   Cooley  773. 

6.  Rules,-  Carriers   of  persons   are  authorizer'.  to 

make   reasonable  rules    and  regulations  for  the 
protection  of   passengers   and  the  carryiiig   on 
of  their  business,    such  as   providing   ticJ^ets, 
conducting  hiuiself  decently,  &c.      For  a  fail- 
ure to    do   these  they  nk^y  be    rumoved.     The 
ccses   are   not    agreed  as  to  whether  a  passenger 
G^n  be   rightly   reraDved   by  the  conductor 
if  he   is  given  the  wrorg   ticket  by  the   company's 
agent,  when  he   is   not   at   fault.   Gooley  774; 
25  Am.&  E.   Enco    1076. 
4.   Telegraph  Companies : 

(l)   They   are  chaiiged  with  a  duty  to   accoiiimodate  the 

public -impajrtially ,  and  transmit  messages   in 
.the   order-  in  which  they  are   received. 
■('2)   They  ur©   responsible  in  seniirg,    receiving  and 

deliveriiTg  messages,    on  the  ground  of  negli- 
gence  only,    and  not  as   insurers. 

(8)   They  caji  inalce   reasonable   regulations   for  their 

busi-'ess,   \'\iiich  will  be  binding  upon  those 
to  ivho'Si  they  are  made   known  in  dealing  with 
thi&m. 


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„a-     -  -or;   -    ■::  -' ■ 


W  C   0   0   L  ^  Y        0  N        T   0   R  T   S    .  43 


(4)   V/lietlier  tliey  can   stipulate   against   liability 
for  tlieir  ordinary   negligence   or  not   is   in 
controversy.    Cooley  775-7. 
^'   I'pfQssioiial  servics,-  the  soneral  rule3  here   apolyJriG  to  all 
alike,-  pl^ysicians  ,    surgeons,   attorneys  and  solicitors, 
are   that   they  contro/jt 

1.  That  tliey  ^ave   that    reasonable  degree   of   learn- 

ing,   3\ill  and  experience,   vibioli  is    ordinari- 
ly possessed  by  these   engaged  in  the   sauie 
profession. 

2.  That   they  Vi^ill  use   care  and     diligence   in  the 

exe'-cise  of  the   skill    axid  'niowled^^e   poss- 
essed. 

3.  Tliat  they  will  upe  their  best    judgment. 

Cooley   777-9. 
5..  Skilled  workuen,    contract  that    they  liave,    and  wi].l  use   in  :;ood 
faith,.  t!ie    ordinary  decree   of  skill  con'inonl^'-     possessed 
by  those    engaced   in   such  occupations.    Cooley  777. 
These   rules    do   not   apply  '.vliere  services   are  "tie re  1;;,'"  volun- 
teered a3  between  friends  and  ac  quaint aiices ;   but  wliere 
one     holds   M  is  elf   cut   as  having   particular  skill, 
and  offers   "lis    services   to   those  vho   accept  them  on 
this*su;position,    he  \yill  be   liable   though  they  be 
rendered  [gratuitously.    Cooley  780. 

Statutory     duties : 

1.  Pvirpose   of   such  statutes.    The   question  here   is  usually 

a  question  of    interpretii:^   "t-iQ   statute  for  the  purpose 
of   ascertainii-\;  whether  the   duty  ix-iposed  is   purely 
public,    or  both  pilblic    or  private.      Such  statutes  usually 
have  one   or  Lxire   purposes   in  view,    sioch   es    (a)   givin^j 
the  public    a  new  protection  where  the  comrnon  law  gave 
none;    (b)    to  give   to   individuals   peculiarly     liable  to 
injury,    a  remedy     where   none   existed  before,    or    (c) 
a  more  conplete   remedy  than  before  existed.      These 
particular  pur:"o:es   are  not   usually     clearly   set   forth 
in  th:  words   of   the  statutes  themselves,-  but    are    left 
.  to  be  detoniiined  by  j.nterpretation.    Cooley  780. 

2.  Rules   of   interpretation: 

(a)   V/liere   a  remedy     existed  by  the  comhion  law, 
and  a  new  remedy   is  given  ty  the   statute, 
and  tliere   are   no  words    indicating  that   the 
new  remedy      is  to   be  exclusive,   the  presump- 
tion  is  that   it   cumulative   or  additional  to 
the   CO  Lion  law  remedy.    Cooley  781. 


13.       ■'"  ■■■'^-  ' 


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C   0  0   L':  Y        OH        TOI^TSo  44 


("b)   Where  that   which  would  otiierwise  "be   an  action- 
able wroii/-,-   ±L   penuitt^d  upon  pulolic   grounds, 
on  condition  that   cori-ipens?,tion  he  i.iade ,    and 
the  statute   provides   an   adequate    ir)--Ledy, 
the   inference   is  that  tlie   lattc-r  x^.   the  ex- 
clusive   re.  ledy.    Cooley  783. 

(c)   V/liere  the   -tatute    iiposes   a  new  duty,   where 
none   existed  before,   and  ^^ives  a  specific 
reaedy  for  the  violation  of   such  duty,    there 
is    a  presu -.ptio.i  that  the   remedy  c^-^^oii   is 
exolusi'/e.      This   is   ii.iplied  vtien  a  du-^.y  is 
enjoined  Uxider    oenalty,    the    recovery  of   the 
penalty  is   in  c-neral  the   sole  remedy,    even 
thouLih  not  made    payable  to   the  party  injured. 
Cooley  783. 

liLcc  options : 

1.  If  5   however  r.  plain  duty   is   imposed  for 

the  benefit   of    indivikduals ,    and  the  pen- 
alty is   obviously      inadequate  to    compel 
perfor.iancCjthe   i?iip]ication  is  stroix;   if 
not    conclLisivo.    that   the  penalty  was 
meant   to  be  ciuiiulative  to 

such  remedy     as  the  comLion  law  gave 
for  a  ne-;lect   of   any   duty.      Cooley  784. 

2.  If  th  )   duty  i.aposed   is    obviousl^r  to   the 

public    and  to    individuals,    and  the    pen- 
alty    is  made   payable   to   tho  state   or 
to   an  informer,   the   rijht   of  the   indi- 
vidual to  i.iaintain  an  action  for  the 
breach  of    duty  to  hi.iself  will  be  un- 
questionable.   Cooley   784. 
3.    Illustrations:    Statut  3S    relatiu:;  to   fenGi%-    railroads 

are   degicnel  for  the  protection  of   the  trr.v- 
ellinj   public  ,    and  for  the   owners    of  str-^y- 
iix:   anir-ials , -   injuries    resulting'   to   eit::er 
thrDi.\;h  t]ie  neclicei^ce   of  the  company   in 
failii:^   to   fence,   ^jive   a  private   rijht   of 
action.      T'lore    is   a  conflict  hov/over  as   to 
wbet:^r  there    is   any  liability  to   aiqy  owner 
of   stTBirxix;  cattle  that  first   str-ay  upon  the 
land   of   another,    and  from  there  on  to    t::e 
traclc  and  are    injured.      Perhaps  under  moat 
of  the   statutes   liability   is   denied  in  su?h 
case,-  tho   duty   to    fence  beiri;   a  duty 
only  to    adjoinii-\j   owner.      Cooley  786. 


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W  C   0  0   L  ■]    :        0  IT       T   0  R  T   S   .  45 


Statutes   requiring  tlie   ring'in,"*   of  "bells,    or   cound- 
±iv;  whittles,    or  nutting    u^  dan,'^;er  signs, 
or  providir^  t^-atea    or  watcL-jTcn  f '.   raJ  Iroad 
crossings,   are  moant    for  tlie  i:ro':er!'.ir.n  of 
ind  ividuals,    and  failure    in  t>f  se   oai'ticu- 
lars ,    resulting    in  damage,   gives   a  private 
right  of   action.    Coo  lev  789. 

Statutes    requirii-|i'    dangerous  ;aa3liinery  to   "be  fenced, 
To  ridge?   to  be  kept   in  repr.ir,   forloidding 
sellim;   dangerous   explosives  witliout   3.a"bel*- 
ling  them,    fo  rhiddir^j  tne  movir^   of  t-'-'.ins 
in  cities   at  dangerous    spood,  &;c.  ,    crc-::l.3 
duties   to   priv  ite   pB-tsons.      In  short   it    is   a 
4.   General  Rule ,    "that   viiien  tte   duty  iciposed  hy   statute 

ip  laanifcgtly  intended  for  the  protection  and 

"bone-" it   of  indivmduals,   the  common  law,   when 

an  individual  is   injured  hy     a  "breach  of  the 

duty,   will  supply   a  remedy, if  the  statute  giv  es 

none."        Cooley  790. 


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W  COOLJYOxvT  TORTS.  46 

CHAPTER  XXI. 
oOo 

GENERAL  ?M,TCIFL'i:S  GOVERITI^TG-  R^HECS   3?0"i;  IMii'r^GEM'CE. 

1.  Def  irdtiori;  -  Negligence   is   the   absence   of  such  care,    pruience 

and  foretlio\;ig]p  ;  as  under  the  circu'oatfmces   duty 
required  sliould  "be  given  ur   exercised.    Cooley  V91» 
See   also  Cla .  XX,  above - 

2.  11:1  omen ts   of    action  for-    There  must  "be   shovm 

1.  The   existence  of   a  duty  owsd  tc    *he   plaintiff.. 

2.  A  failure  to   perfonn  this   duty. 

3.  Dani'i^e   resulting   p-^oxi.iately. 
As   to  the  first   of  these,    dutiei;  are 

(a)  General,    owi!?:;   to   evetybody,-   in  which  case   there 

c:-un  he   no  foundation  for  an  action  until 
soue   individual   is   placed  in  a  position  to 
insist  Lipon  its    perfonaeuice  for  hisr-   special 
benefit.      I'or  example,    there   is  a  general 
duty  of   railroad  coii'ipanies   to   run  their  cars 
carefully  .-out  this  heoomos   a  particular 
duty   ■* ,.    a  particular  individual  only  when 
he   is   a  pas-senger,    or  wishes   to    cross  the 
track,    or  his   property   in  a  position  or   at- 
uation  to  he    injured  if  the   duty  is   not  ^^er- 
xormed=      Cooiey  792--3. 

(b)  Particular,-  owinfj    onHy  to    a  single  person  hy 

reason   of  his   peculiar  position,    as   the   duty 
of  a  land  owner  to   furnish  "by  his    land  lateral 
support   for  the  adjoinir^    land;   Cooley  792-3. 
.  As  to   the   second, 

(a)   Failure   to  use   care   is   an  affirmative  fact   and 

must   he  alleged  and  shovm,   "by  the  one   alleg- 
iiX;   it . 

("b)    The   amount   of  evidence   necessaiy  to   do  this  varies 
greatly  with  t^xe  circu.nstances: 
(1)    In   some' cases  the   injury  itself   affords 

sufficient  prima  faciu   evidence  of   negligence. 
Por  exmple,    the  return  of  hailed  goods    in 
a  damaged  condition,   calls  for  an  explanation; 
the    destructxon  of   property  by   fire   originat- 
ing with  locoinotives  ,-the  fire    itself   is 
evidence   of  iiegligenco   until  explained; 
so,    too,   vAxen  a  passenger  is   injured    in  a 
wreck,   the  .wreck  itself,    until  explained, 
is   evidence   of  ne^jligence  ,-and  generally: 


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17  COOLf^YCIT        TORTS.  47 


"\Vh3n  d-ur.-:ige   uccijrs  f  roi;ic.n  act  wliich  when 
proper:iy   done    does  rot   cause  damage,    a  pre- 
sumption of   ne;;liGence  arises."   Oooley   794-800 
(2)    In  otlier  cases  t'lere   is  no   presumption  from 
the  inju.y   itself  as  to  wlx)   is  neclicent; 
for  excunple ,    if   a  collision  occurs   between 
two   carrirfes   on  the  hlghwcvy,-  fro=.i  this   fact 
alone,    it  aay  be   pi'erumed  that   one   or  both 
drivors  were  ne^iLlgent,   bvt   thsre   is  no  pre- 
suraption  as  to  which  one  was   negligent,   un- 
less some   further  fact   is    shown,    such  u.g 
being  on  the  wroix;   side   of  the    read  o.    some- 
thing  of  that   kind.    Cooley  797-799. 
(0)   Negligence   is   a  mi::ed  .question  of   law   and  fact ,- 
Was  there  c,  duty  is    a  question  of  law,-  was   Tt 
perfomed    .  .-   a  question  of  fact.      Hence   the   ques- 
tion is  for  the  jury  in  uiost  cases,   under  a  pro- 
per direction  of   the  court.      The  jury  crust   first 
find  the   fcicts,and  then  detennined  whether  the 
defendant   e:cercised  the  care  the  circu.;istances 
demanded;    and  in   doiiTg  this  thgy  must  consider 
wiiether  tho  defendant  acted  as   an  ordiiarily  pru- 
dent man  would  have   done  under  the  circumstances 
found,-  and  the  sxandard  of   prudence   does   not    vary  • 
with  individu:i,l  ability   in  the  case   of  competent 
adults,-  the   standard  of   the   average   prudent  man 
is   demanded  fro  i  all.      Bvt   the  same  degree   of  care 
is  not   demanded  of   children  of   tender  age, as   of 
adults,    nor  under  some  circumstajices   of  the   deaf, 
duitib,    or  blind,    or  of   insane   persons,    if  the  in- 
sanity is   due  to  extraordinary     exertion  in   trying 
to   prevent    injury.    Jagjard  871.      To   the   rule  that 
the   question  is  for  the  jury,   there   are    some 
Exceptions : 

(1)  When  the  question  arises  wholly  on  the  plead- 

ings,  as  "by      demurrer  to    the  petition,   the 
court  must   decide  whcthjr  there   is   any  show 
of   negligenje. 

(2)  When  the  facts   are  all  admitted,    and  the 

^nfereijce  to  be   drawn  fron  the  i  is  clear, 
the  court  al&o    decides. 

(3)  But   if  the  facts  are  doubtful,    or  fair  minded 

men  would  differ  as  to   the  proper  inference 
to  bo   drawn  frou  them,    the   court    should 


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G   0  0   L  "";  Y        0  IT     T   0  R  T    S    .  48 


gubait    t:ie    ntter  to   tlie  ji^ry.    Coo  ley  800-806 
(d)   Burdea  of    •oroof ,-   as   indicated   above  tlie  burden  of 
is   on  tne  plaintiff   to      sliow  ne{:;ligence    in 
cares  v/liere  tliere   is   no  contract;   but  Pollock 
says   tha.+   "I'len  tliere   is  a  contract   or  un- 
dertolciix;,    tlie  burden  cf    proof   is    tlirownon 
t]iG  otJjgr  party,   by  tlio  -lere   fc-xit   of    aii  in- 
jury lia  neuinj ,    to    e::pla-in   it.    PolloCk  548. 
Contributor^^  ne^jligence. 

1.  The  .-xeneral   ru]e  here   is    "that  no     i^Ji  sh-i-ll  ba?e 

r.  ri  :ht  to    rec  ovary     upon  his    own  fault,-   as 
between  two  wrongdoers   the   law  leaves   t.ie   conse- 
quences to   rest  'Yiere  they  liappen   to   fall." 
Coo  ley   807. 

In  the   applicatio:!  of   this    rule,  three   questions 
arise:    The  burden   of    ■)roof",   the   decree   ox    contrib- 
utorj'"  no  :1a '':ence;    rule  as   to    i:ipated  ner; li:_;ence. 
Of  t'lGse    in  Vid  r  order  - 

2.  "^-urden   Ox     )rojf :    Th.ere    are  two  views   as  to  this: 

(a)    Sixice   neither  ne:;li:^ence   nor   contributory 

nejli^ence   is   presu  led  without    soiie   evidence, 
contributor;''  ne-'jli^enco   is   r.lways  a    latter 
of    defense ,    and  v.uist  be   alleged  and   proved 
by  t'le    defendant.      To   t'lis    rule  there    is    ui 
~lxce  "ot  ion,-   if   f  ro  i  the  plaintiff's  alienations. 


or  fro  1  the   evidence  he  puts    in  to   show   die 
defendant's    nej licence,    it    appears  that    tlie 
•■plaintiff  v/as  hi  iself  at  fault,   he  niust    re- 
move this  ap")ear^aice  by  other   evidence, 
before  the   defendant    can  be  called  upon  to 
answer.      Cooley   809. 
(b)   Th.e   other  view  is    "that   ne^'ligence    inone 

party  pre^uTooses   the    duty  of  care  upon  hin 
for  the   protection  of   the   other,    the  Plaintiff 
does   not    show  this   duty  until  he   shows   ]iis 
own  relative  position",-   or  in  other  v/ords, 
there   is   no   duty     to   uise   care  to   protect   one 
who    is   not  careful  at    tne   tiuie,-  t.ie  absence 
of   oontributoty  negligence  beco.  les   a   paxt    of 
the  -)laintiff '  3   case,    -^n.'.  he  must    allege 
and    Trove    it  before  the   defendant   is  called 
to    aiiswer.    Cooley   809-10. 
3,    De:;;ree   of   contributory   negligence. 

1.   W.antoii  jonduct.    "V/liere  the   conduct    of    t.he 

defendant   ij  -vat o net,   vdllful,   or   rechless, 


.,-  .J^^a^. 


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the  fipntrine  of  GorrtributDry  no^il^noe 
'  ;  hfl^  no  pl^aoe  wh-^tever,   and  the   defendant 

,.-_  '  is    responsible  for  the  injury     irres- 

pe6"tlvp  ol'  the  fault  listodoli  put  the 
•  i  plaint.i,f^f  in  tlie  way  of  such  in^uryo" 

.;'  Goo  lay  811. 

'^^  \2^JaTy  deg-rf.<l'oir  nggligenoe,  hovrever  slight,  upon 

•.fi'".  plaL.;.lffV3  part,  which  proxl^aately 

.fi  com-rihutes  ta.ihis  injury,  will  prevent 

i-  recoTxiry;   the  courts  will  malce  no  attempt 

.to  oa€i;iato  lithe  part  due  to    the  defeu- 
['     .  y.     "dant   7  a(?t  and  tho  port  due  to   tl-,3 

.:  .  plal  ,^(ifi's  ac't,  ^d  apportion  then,- 

tut  wl^.-'-  s'^^s^  "t^Q  defendant  entiiely. 
T'^e   ruj.-e   ia   differeot  in  ad.nirbilty, 
.•3Lnd  \/^  fonugrly  dixf?»rent  in  some  of 
.    o'  the  «6atep,   as  Ulinoic,-  hirt   this 

!  •        "     "  stati  has  /^■bandDned  the   rule   cf  comoara- 

tlye 'hecllgenoej   163  111163. 
'■",...        •  ■  As  to  vri^en  ihe  plaintiff^  s  negligence  is 

prixlj:n.ate  to  his  danagS ,   the  following 
■"  '  su'j-rules   are   impcrtart: 

(a)   If  jgllaintifi 's  negligent  act   precedes 
.    '    .  that   of  defendant,    and  the  latter  e  it  hair 

.  .  ■  krl^w,   or   hy  the?  exercise   of  reasonable 

Ca^;Q  could  ha'V©  Icnown  of   the  conditibns, 
and  by  the  exercise   of   due  care  could 
„.v-'  •'  '  Tirpvent   injury,   it   is  hj^s  duty  to  do  so, 

'•;•.■  apd  If  he  fidl^,  his  negligence   is  the 

•  ■  proximate  cause »   smd  that  of  the  plain- 

tiff s   is  reiMteo  Coolejr-  811.   Pollock 
579;  Davies  Vc   Ifcjm     1.1  Mees  &  Wc546. 
■  (b)   On  the   other  hand,,  if  the  defendant's 

necligsnoe  pr^cedea  the  plaintiff's, 
and  the  lacter  could  by  the  exercise  of 
'oniinary  care  havtj   avoided,  the  injury 
he,  can  not  recover.   Cooley  ,812 j  Pollock 
579,  Butterf'teM  v.  Forrester  11  East   6o 
.  '^  ..     ■  Or  both  -ohese  r^lds  may  be   stated  thus: 

..      ■    v..  "h«it  who   last  has.tn  opportunity  of  avoid- 

inc  the  accident,   notwithstanding   the 
■^^  .  necli:^once  of  the  other,   is  solely 

■   .  ^  vc -...c-.^-Siblev -*  Pollock  579. 

(c;     - -■   the  nejligent    acts  are   siniultaneous , 
.    ■."-'.en  the  plaintiff's  neglisenco    is 


'.:'m 


3^-    :  /.i^^i:^  "^icij'iii";i'':i;:!>o  ■B'-i'  s^^if''r  tnc^  ^'fe'iia- 

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,.,..  -^  .      '^  ■•  ,....G   :.■  ■*■  '. '•'',.U!;:.^^:^a^:*'  <jidt 

'no-c:i;    .  ^■...,..._:  ,.  (■■-  --.^    ■     ■    ,    :,x 

,'■:',    r         ■      ■  ..■;    ■.     -•■     ■.  ■ 
■■?>:;5i^vc'l-ii'--    .'.:^  ■■(■■^'"  -    '•      ■-■ 

•^ftedriS'S  ""-iii^^tsd  '»4i-'   :*if«j  -,  "  -.©i)  Via  :r;.:  ' 

2^-.:CJ  Id^  «.L  _        ■-  ••    •■  c    '■        . 

raudj-  f:'  :'    -'  ■'-■•      •  '■■■  ■  ■ 

■^slroe  at         "  -   '3Siv::j:^  •^}-  -(£'■,:£;- •jj' ;>a5r- 


XI  COOL^YC  IT        TORTS  50 


pro:d.nate   and  lie   cm  not, Recover. 
3.    ^ncounterliTr;   perj.l  to    tsave   life ,    "So  highly 

does   the  law  regard  ]iuman  life, that    jt  v/ill 
not    i.Tpute   net'slipence   to   an  effort   to  pre- 
serve  it,    if   from  the  appearances  the  party 
liad  reason  to  "believe  Le  night  succeed  In 
the  atoeuvnt,    though  not  withou-o  dangar  to 
hiinselfl.  *'  Oooley  817 

4.  I--i")uted  ne'^lis"nce: 

(a)  In  the  case   of  children: 

'it  has  been  held  in  p]nglsLnd   (E1.B1.&  El. 
719)    and  also  in  New  "York  in  Hartfield  v. 
Roper,    21  Wendc(N.Yo)    615,    that    "an  infant 
of  tende'"  years  ."  s  chargeable  with  the  neg- 
ligence  of  the  person  hevine  him  in  charTge," 
and  he  car    not    recover  dani-ges  for  an  injury 
to  hin  due  to  the  negligence   of   uhird  par- 
ties,  or  a"  has    been  said,    these  courts  have 
perfon.ied   the   "dialectical  feat   of  indentify- 
ing  a  child  with  its  granc'irother" .      Such  a 
barharous   doctrine  is   now  generally   abandoned 
in  the  United  States,    ohou^jh  adhe^'ed  to  yet 
in   so  -o   states.      See  Notes  49  Sni.St,R.413 , 
anrl  44  Am.    St. Rep.    145;    14  St.R.    591. 
Of  course  ^'iiere  the  parent   sue&  for  loss  of 
sei-vice  caused  by      an  injuiy  to   the  child, 
the   contributory  negligence   of  the  parent 
will  defeat   a  recovery.   Jagi^ard  988. 

(b)  Negligence   of  thiid  parties ,-  A  similar   doc- 

trine was  held  in  ThorovighGood  v.   Bryan, 
8  C.B.115,   Toy  which  the   person  in  a  public 
or  private  conveyance  was   so   identified 
with  the  person  in  charge   of   it  as  to  be 
considered  a  party     to   the  ne::;ligence    of   such 
person  in  such     way  as  to   prevent  a   reccvery. 
Such  a  rule    is   now  abandoned  in  lilngland  and 
in  the  United  States,   u^iless  there   is    soae 
control  or  nanageirient   exercised  by  the 
passenger  over  the  driver.      Gooley   842-5; 
The  Beinina  L.R.    12  Prob.I)iv.58;    Little  v. 
Haclcett    116  UoS.    366. 

5.  Contract^j   against    liability  for  negligence. 

Ta)    It   is   a  genera]    rule  that    contracts    stipulat- 
ing  for  non- liability  for  negligence   are 


-.'OCS'f 


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n 


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--ij'Si.^.i*/-.;^-  V-.   ..  >■■:  -  ;    ■:■:■;■"..      '       '■■    ^' - 

0   seoX  .'To^  -agis'g    J-^e-ijax':  ^4■^^S7  f  ■  ;-   1© 

i-t  -  i^i/.i'J '^'a^  "  0  lupins  a 

.■_,.■::-. /3;j:Hio/   v^i'-''^^'  ■'     aJ.;;fV'J^-"  :'I    ^'■•^ 

..   .  :.:■ .        t  '^^     .;        ,,.;,  .  :g:i^<:H^ 


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W  C   0  0   L  J:    r        0  IT        T   0  R  T   S    •  51 


a,^j;aj.nst  public   policy  and  voj^d.    Cooley   825. 

Cb)   But   in  tt.o  case   of  cojinon  carriers,    it    is  gen- 
erally held  that   hy  express  contrswt,    they 
can   limit   their  e^traordinsuy      liability  to 
the   liability     of   ordinajy  bailees  for  hire,- 
but   can   not   3tipu.late   against   the   ordinaiy 
necligeno '    Df  themselves   or  sen'-ants.      Sou© 
states   allow  further   limitatioiis  to  be  made. 
Cooley   325. 

(c)   Telegraph  coupanien ,-   stipulations  that   the 
company  will  not  be  liable  for  mistakes 
in  unrepeat^d  messages,,   though  due  to  the 
negligence  of  the  Compaq/,   have  been  upheld, 
thoi;gh  it    i,s  believed^    by  the  weigh*-,    of 
autiicr-  ly ,    so  far  ^^s  being  an  a^ttempt   to 
r&lie'/':)  agiinsb  negligence,   such  stipulations 
are  void.    Cooley     829.    25  Aai.&  E.   Fnc. 
7D0;  W.U.Tel. Co o    v.    Crawford  4  Am.&  E.Corp. 
Gas.    Ul.Sa)    230,    note  p.  232. 


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M  COOL    1  YON       TORTS.  52 

C   Z  A  P  T  -^  R       XXII. 

oOc 

PLACE  OP  3VIL  KOTIWI   PT  THHl   LAW  OP  TORI'S. 

1.  There    is   no   consistent  theory  as  to    liahllity  for  tort.      Three 

theories  lia/e  "been  advant^  jd  : 

(a)    The   historical,  "based  in  ths  oarHy  coiniion  lav/  upon 
an  absolute   liahility,-  a  person   acts   at  his 
peril,-  he  js    resonsihle  for  danB^es   occur- 
iiTij    regardless   of  motive   or  care.      This, 
thoi;iGh  yet  preserved,   in  soue  cases  where 
there  is   peculiar  danger,    is   not   generally 
applied  now. 

(h)   The  £hilosc-";Mcai.  J--  "based  upon  culpahiJity,  v/here 
t.onro    I'j.   soEie   sort   of  moral  dela.nqviency , 
or    olioit    coi.iii'j^.      This   view  seeros  to  he  gain- 
ing ,-;roTAnd,    especially  when  the  liability  of 
incompetent  persons    is  bein,':;   considered. 

(c)   T1.13   practical,   based  on  the   actual  state   of  the 
law,-  tiiere  must  be  both  wrong    ( so -lething 
amiss  within  the  meanin';:   of  the  l^w,    due  to 
some   fault)    and  result ir^   daiiHge  to    a  defi- 
nite  -person.      Thi^   fcult   or  thing   amiss 
may  indicate  an  active  guilty  scate   of  mind,- 
or   ■^.  negative   ctate   of  mind  by   failii:g   to  use 
it,    or   an  innocent  mental   state,      wliich 
is  willing  to    assuiae  the   peril  of   acting. 
Holmes  Co'io    Law  7y;   Jag'jard  Torts  48; 
Pclloclc  Torts  Ch.lj  Bigelow's   Introduction; 
Coo  ley  Ch.l  &   IV. 

2.  It    is   generally  hold,   however,    that    "bad  motir  e    is   no   tort; 

an  act  which  does    not    ru:iount  to   a  legal  injury  can   not 
be  actionable   though  done  with  a  bad  intent," 

wl^atever   is    lawful  between   friends   can   ix)t  be  un- 
lawful between  enei-iies;    "what   one  ha^    a  right   to 
do    another  can  have   no    right  to  complain  of. 
Cooley   831. 
Illustrations  ,-•      for  governmental  action,    or  failure 
to    act   to  the   injtiry     of   another,    wbate\er 
may  have  been  the  motive,   there   is   no    right 
of    action,  but   only  a  right   to  appeal  to    the 
juscice  or  mercy  of   the  government.    Cool^  831 
This    rule   is  applied  to   the  legislative, 

and  the   judicij-1   departments  when 


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\7  C   0   0   L  "^  Y        0  N        T    0   R  T   S    .  53 


in  the   escsrcise   of   tliei  r   la-vfui  authority:    as 
said  in  regard  to    the   legislature,-   "le  ;i3la- 
tioa   shall  not   "be  assailed  in  the   coui-ts   on 
an  allerjatiou  of  i.ialice,   "bad  faith  or  corrup- 
tion in  ■.assii:^:    it,"   Cooley  831. 

3.  Upon  fiG   other  hand,   had  Motive   is  held  :;;en9rally  to  roake 

load  acts  worse,    bo   c.p   to   allow  t'le   iiif  liction  of  e:c- 
erdplai"y     daiio^-cs.    Cooley   832,836. 

4.  So,    too,    "the    .lost   correct  motive,    or  even  inability  to   in- 

dulge  a  notive,  will  not    protect    one  \/ho   invades  the 
riglit   of    -',nother.      The   lec^^^J      wronr;   is   found   in 
tho   injhuy      done   and  not   in  the  motive."   Ceo  ley   834. 
There   are   to    these   rules   3o^^e 
"Ixce  .:t  ions  ,    or   'VToarent   ^cc  ot  i^ns. 

(a)    LioGl    -aid  slander,-   it   ij    said  that  .lalice    is  an 
esseiitiil  eleuent   hero;   "but    this  is   only 
a)_")areutlly     so,   for   if   the  charrjo  i^    shown 
to  be   f  ilso ,   and  no   -privilege   is    sjown, 
the   law  presu-Tes    iialice. 
But  there   are   two    real  pxce:)ticn3; 


(b)  Conditional  privilege  in  the  lav  of  sla  ider  and 
libel,-  is  a  privilege  only  when  charges 
are  i.iade   in  ^ood  faith;    if  aade  maliciously 


there    is  no    privilege;    in  other  words  false 
state,  lent  s  i.iado    in  ^ood.  faith  to  certain 
perso'-is  having   an  interest   in  the.i,    are   not 
actionable;   whereas  if  the  saine   statements, 
made  under  otherwise  the    sajne  circu  istances 
to   th"!   same   parties,   but  with    lalice ,    are 
accioiiable.      Cooley     835. 
(c)    The    sa.ie   is   true   in  vxtl:  ciou&   prosecution,-   the 

sai'.ie   acts  done   in  jood  faith  are   -lot    act  ion- 
able, but  becoue   so   if    done   inaliciously. 
Cooley  835. 
It  mi  ;"\t  ho    su';  ;3sted   in  answer  to   the   viow  ta'cen  in   rule 
2  above,-  t'.iat   t'le    question  is   lor^'^ly  one   o£  what    is   a 
legal   r i;; ht .   \71ion  it    i.o   said  "'.'/liat    one   has   a  rj(;;ht  to    Xo  ,    another 
has   no    ri'.iLit  to   co..Ipl.^in  of",-  that    is    a  mere  truJsm;    it    is, 
howover-  not   necessari.^"  tVie    same  to    say  that   one  ;..ai    a  legal 
ri';;'it  to   do   ;.ialiGiously  v/liat  he   otherwise  would  'lave  a  le::;al 
ri  :ht  to   do.    If   t'lis    is    affirmed,    it    is  fair  to  ask  -'Has   any  one 
a   ri^'ht   to  har  \  anoth.er  wit'iout    a  reason  that    is   justifiable?    " 
And  i:3    any  reasom    Just xfi  able   except   one  that    is  mo  rally   so  , 


-    ■    ■  .       •    ^^ifij'i.  :■  L   .  , ,  ■ 

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W  C   0  0   L  "']  Y        0  N        T   0   R  T    3    .  54 


one  tliat    is  based  on  a   reasonable   or  roorally   legitirriate  purpose 
or  end?     Has  A  tlie   right  to  liar.-:i  3,    just  because  lie  ^viahes  to   do 
so,   without   fonvardin'^   or    orotectinc    a  lef^itir-iate  purpoae   of 
liis    own?  If   :^  ne-ligenjr   (but   otlien^'ise  jcod  f aj.  bli  act)    plus  ham 
equaJLs    a  tort,   wliy   should  not     an  actually  morally  bad  act 
plus  hann  eqiial  tort?     And  wloy  should  not    a  inoralLy  bad  act 
plus  hann  done   always  be   a  ""ort? 


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NOTES  ON  THE  DOGl'RINE  OF  PROXIilATS  CAUSE. 
By  Prof.  V/ilgUD. 


There  must  be  a  conjunction  of  tttotip:,  and  dama^e;e  to  produce 
a  tort;     and  these  rnust,  generally,  be  so  related  that  the  wrong- 
ful ax;t  can  be  said  to  be  the   proximate  cause  of  tlie  damages;     or 
the  damages  allowed  must  be  the  proximate  consequences  of  the 
v/rongful  act. 

These  are  oxceedir^y  difficult  accurately  to  define.       The 
follovdng  attempts  have  boon  made: 

Proximate  Cause  is  "one  which  directly  produced,   or  concurred 
di-^octly  in  producing  the  injury;"     "one  without  which  the  acci- 
dent wou]d  not  have  occurred;"     "one  of  which  the  injury  is  a 
natural  and  probable  consequence;"     "direct  and  natural;"   "ordin- 
ary and  natural;"     "closeness  of  causal  relation,   not  nearness  in 
time  nor  distance,   is  the  test." 

Remote  Cause  is" that  which  may  have  happened  without  produc- 
ing an  injur3^  notwithstanding  that  no  injury  could  have  occurred 
if  it  had  not  happened." 

Proximate  Consequences  are   "direct  aiid  natural;"      "such  as 
mivht  probably  ensue  in  the  natural  and  ordinary  course  of  events;" 
"ordinary?-  and  natural;"     "or  such  as  according  to  common  erperien-e 
micl  the  natural  course  of  events  might  reasonably  be  anticipa.ted; " 
"such  as  might  and  ou-^;lit  to  have  'oeen  f oreseeno "      (See  especially 
note  36  Am.    St.  R.   807). 

A  somewhat  more  ambitious  definition  is:       Tliose  consequences, 
aj;id  those  only  are  deemed  "imiriediate"    "proximate , "   or  "nr.tural  and 
probable,"  which 

1.  A  person  of  average  conpetence  and  Imov.ledge, 

2.  bein^i;  in  the  like  case  or  circuj-flstance  ^^^dth  the  person 
whose  conduct  is  complained  of, 

3.  having  like  opportunitios  of  observation. 

4.  (a)     foresees, 

(b)  might  be  e:ci:ected  to  foresee, 

(c)  ouglit  to  foresee, 

(d)  or  could  possibly  foresee, 

As  likely,    (or  possible) ,   to  follow  such  conduct, 

5.  Tlirougli  a  natural   (tliough  perha^os  an  extraordinary) 
course  of  events . 

It  r;.ey  be  that  wliat  is  in.l"ded  in  parenthesis  and  Uiider  (d) 
above  should  be  Isfi.  ..^. ;     many  cases  certainly  so  hold, 
thougli  sorie  well;  ti^ri-6'.d© red  c.  aes  have  gone  far  enough  to 
justify  the  btrongoi   btateraents.       See  generally.  Pollock 
Torts  (V/ebb's  Ed  J  p.   32;     Ja^Sard,  Torts,    r^  22-26. 


••      :       ■<[■■' xiotk' ''y^  -'"f'  ■•.■^•y'      '■ ; /^j;;!  iTJ   9::  ■.'.., :/!',.. 

!j,,-«  IJJiJJbi:     -<-"^fefi^'3-  '■^J'n-'-^f 'X    ■  -  Lk?'^*  '   '-*   '•ii      ■  >-T.,  V  • 

■  :>00-;^v..  ..    ■  .■./(;;.  ^  ;■     -r  1  _ .        .  ;^    :;;:■ 


-civ^iirrKa;-^;^  j^rSi:/vctj;x'^;;U,  i;^..--.u--f:^.v-r'-  ■  '      ^^l^U^-^   c.-.-.j-xifv  -^-tr 

.  -..   ,'i^U'-;Ji:-','Jdc   - 

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NOTES  ON  TIE  DOCTRINE  OF  PKOIII;IA':'.S^J  CAJF'^ 


itj^. 


RULES  : 

( 1 )     Intended  or  actually  foreseen  consequences: 

If  it  be  'pTo-psd  that  the  p?.rticulr>.   cor  sequences  were 
intended  aiid  foreseen  by  the  wronr^ful  actor,  he  is  licJble  whether 
they  v/ere  proximate  in  fact  or  not,   for  the  law  holds  fn^t  "that 
which  a  man  actually  foresees  is  to  him,   at  all  events,   natural 
oiid  probable."     Pollock,  Torts,    (Webb's  Ed) «   'p,   32-33, 

'(2).     Wilful   actp .   .r,    e,    such  as  are  intended  to  do  harm: 
Thou:5h  the-  consequence 3  liere  are  more  than  were  intended  or  differ- 
ent either  as  to  events  or  the  person  affected,   the  wrong  doer  is 
liable  for  the  natural  consequences  of  his  acts.        '""A  wr^-i;-  doer 
who   -r.oes  about   go  do  harm  cannot  stop  the  risk  a.t  his  plea^sure 
nor  confine  his  liabilities  to  what  he  actually  intended,  but,  is 
liable  for  the  natural  consequences  of  his  act."       Pollock   (./ebb's 
Ed„ ) ,  35. 

(3)     Acts  distinctly  wron,"':f ul : 

From  a  distinct  le;-,al  wrong,  which  in  itself  constitutes 
an  invasion  of  the  right  of  another,   the  law  will  presume  that 
some  damage  follows  as  a  natux'al ,  necessary,   and  proximate  result,- 
Cooley's  1st  rule.  Torts  p.   74.  , 

(4).   Acts  not  distinctly  v^rongful!       Vflien  an  act  or  omission 
not  in  itself     a  distinct  v/rong,  but  becomes   such  only  through 
injurious  consequences  resultin;;;  therefrDm,   these  must  be  pile  .ed 
BxA  proved  to  have  resulted  from  the  act  or  omission  accordin^^  to 
the  ordinary  course  of  events  as  a  proximate  result  of  a  sufficient 
cause, --Cooley's  2nd  rule, --Torts  p.    75„ 

(5).   Combination  of  Ce.uses;       Cooley's  3iu.  and  4th  rules. 
Torts  p.    76,   89;     may  be,   with  sor.e  modi fi captions,  put  in  the 
lollowint':  tabular  form: 


■■  "'i'iiii  'nx,  :i'ii-MD^u- 


r'i 


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'S'"'" 

oiJjA:^o '■   ;: 

NOTES  ON  THE  DOCTRINE  OF  PROXIMTE  CAUSE. 


3. 


Pi sfTora  as  to  Combiration  of  Causes. 


;Origina].  wrongful  act   A 

Dependent  :   Innocent   B 

upon  original   : 

wr.'ngfiJL'.  act.    :  V/rongful   ■ C 


C  rlnta-'ven 

A  :  iiif^  c;   o 

U  : 

s  •■ 

E  i 


I 


Innocent 


Independent  of: 
the  original  : 
Y^rongful  act     : 


:  Wrongful 


Foreseeable 
by  A. 

Unforeseeable 
by  A. 


-D 


Superseding  the 

original  wrong-  '^ 

ful  act 

iForesee- 

ResDonsible,  but  :able  by  A — G- 

jUnfore- 
: see  able 
:by  A. H 


not  superseamg. 


^'Joncurrent  with  the  original  wrongful  act- 


Tjien 


I 


A  +  B 

A  +  C 

A  +  D 

A  +  E 

A  +  F 

A  +  G- 

A  +  H  - 

A  +  I 


leaves  A  liable,  B  not  liable 

"         A       "        ,  C  liable  too 

A       "        ,  D  not  liable 

Conflict     '^  lis-^le 


:A  not  liable 
A  not  liable,  F  liable 
A  liable,  G  liable  also 
-  A  not  liable,  H  liable 
A  and  I ,  either  or  botn  liable 


E  not  liable  = 


Some  explanation  may  be  needed: 

By  original  wrongful   a/.vt,   is  meant  "one  #iich  would  or  might 
naturally,   according  to  the  ordinary  course  of  events,  prove  injur- 
ious in  some  way  to  some  peraono " 

"Dependent  upon  th3  original  wrongful  act, "--one  that  is 
stai'ted  by,  produced  by,   caused  by,   set  in  motion  by  the  original, 
wrongful  act,   or  the  latter  is  necessary  to  the  existence  of  th: 

former. 


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ITOTRr>    ON    TMG    DOCTRIITfi:   OF  PROXII  lATE    CAUSE.  4. 

Independent   of    the   orir^inal   wron'rful   act, --one  not   caused 
yyj    it,    ov    set    in  motion  by    it,     tbonrrh    it   r.iay    take        •advantas;e 
of   it,    or    combine   v/ith    it   as    an  additional   cause,    or    condition. 

Supei'ssdinp;,    one    that    is   sufficient    to   cause    the  alleged 
injury      and  which^    by   breaking   the   connection  with    the  original 
\7i'onTful   act,    thereby   supersedes    or   displaces    the    latter. 
P'  Responsible,  --that    is    the   culpable   act   of  another   hiiman 

being,    responsible   lor   his    ovm   acts,    and   for   whose   acts   a 
liability  may   attach. 

Innocent,    an  act   v/ithout   fault;      wrongful,    one   due    to 
something   amiss,    by    the  malfeasance,    misfeasance,    or   nonfeas- 
ance  of  a  human  being. 

In   this    connection  as    to   "foreseeable"    or    "unforseeable" 
it  i::a.'   be   said    th.at    every   one    is   presumed   to  know: 

(1)  That  mai,ter  is  governed  by  fixed  laws,  and  cannot 
be  tlie  subject  of  human  activity  without  producing  results, 
depending  on   the   character   of  i.a,T:ter   affecteu. 

(2)  That   the  boaies   cf  men  and  animals   are  so  constructed 
as    to   be    the   subject    of   injury   by  violence,    or    ixnhealthy   con- 
ditions . 

(3)  That   all  men   and  animals   are   controlled    to   a   certain 
extent   by   appetites,    impulses,    instincts,    feelin/^s    and  emotions, 
each  of  which   if  worked  upon   in  certain  ways  will  be  likely   to 
induce   certain   conduct.       (In   the   case   of  animals    this    is 
carried   to    its   logical    conciliations,    as   much  as    in   inorganic 
nEtiu^e;      in  case  of  human  beingt   not   always   so).        See  note 

36   Amc    St»    R.    807. 

(fi).    Concurrent  v/rongs:         "If    the   damage  has  resulted 
directly   from  concm-rent   wrongful   acts    or   neglects    of   two 
persons,    each  of   these  acts  may   be  counted  on  as    the  wrongful 
cause;    and    the  parties   held  responsible,    either   jointly   or 
severally,    fo^'    the   injttry."        Cooley's    4th  rula.    Torts   p.    89. 

(7)-    Ac  cider: -t-al    injuries:        For  a   purely   acci^iental 
occurrence,    causing  damage  without  the  fault   of   the  parson   to 
whom  it    is   attributable,    no   action  will   lie."        Cooley's   Torts 
p.    91. 

(8)  .    Dai-nage  Vrom  lawful   acts:         "It    is    danni^m  absque 
in.-iuria^    if   through   the   lawful   and  prope:.'    exercise   of  a  man's 
own  rights   damage  results >    even   though   they  might  have  been 
.  anticipated  and  avoided.      Copley's   Torts,    p.    93o 

(9).    Duty   to  Plaintiff:        There  must  be  a  duty   owing  by 
the   defendant    to    the  plaintiff,    before    the   latter   can  maintain 
an  action  against    the  former »      87   Fed.   R.    109. 


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IIOTi'^S    on   TT1E    ■X)CTniyC    01    PROXlI.iAlti:    CAUSE.  5 

(10).    Pr ovine P   of   .jud.^e  and   .1  nr y ,        Tho   jud,';;e   determines 
w]iei;her    the   cpuse    is    or    ir    not   proximate    to   a  l-.armfnl  result: 

1.  When    there   is   no  reasonable   doubt   about    the 
ma  1 1  er  . 

2.  V/hen   the   question    is  raised  by   the   pleadings- 

3.  When    there    is   an   afrreed  statement    of  facts  :■ 

4-        V/hen   the   facts    are  undisputed,    all    subjecl    to 
the  following;   qualification,  ■--"  in  all   cases  v/here 
there    is    either   uncertainty   as    to    the  facts   or    the 
proprr    inference    to   be   di^awn  fi^om   them,    tlie   question 
should  l^e    left    to    .he   jury    to   determine." 


PROBLEMS    TO    ILLUSTRATE   TljE  DUGTRIIIE   OF   PROXIIMTE   CAUSE, 
P  equals   plaintiff;    D.    equals   defendant. 

1.        D's   pilot   cutter,    through  negligence   of    tlie    captain 
slruck   upon  a  shoal    three    fourths    of  a  mile    from  P's    sf^a  wall; 
at    the    time    there   v/as    a   strong  wind  and   flood   tide,    so    that    the 
vessel    became   urunanagable ,    and  drifted  against  P's  wall   and  ^-i-*^  - 

damaged   it,    for   which  P.    sued   D.         Is   he   entitled    to   recover?  ^^ 

Why?  ;^.(R,     ^  ii/^^JL.    a^dV-zS^O. 

.        2-.        P.    sued  D.    alleging   that  he   sc   ne g  1  i r;;en t ly  managed 
his   horse   hitched   to   a   slea  and   driven   in    the    streets    of   E., 
as    to    di-ive    against    the    sleigh  of  C    upon  T.    street,    breaking 
C's    sleigh,    and  scaring  liis   horse    so    thJ  t    it   escaped   from  C's       (^-v^^-'^v-s.^^ 
control,    and  finally  ran   into  P's    sleigh,    in  which  P   was    then 
riding   on   E.    stieet^    broke    the   sleigh   to  pieces,    threw  P   out 
and  broke   his    collar   bone.      D.    ^emiun^ed    to  P's   declaration. 
Should   the   demurrer   be   sustained  uv   overruled?        Why   ?  -, 

3.  D.    was    the    owner    of  a   warehouse,    and  wishing   to  remove 
a  heavy   bag   of   »vool   from  an  upper    to   a   lo\7er    story,    directed 
his    servants    to    thi'ow    it   out    of    Uie   windo\7  opening   into   a  yai  d. 
Thfe   serr^ants  whtfn   about    tr   do    so   called   out    to   wain    those   below. 
P»    heard   the    call,    and  looking  up   saw   the  bag   about    to  be    thrown 

out,    and  started   to  run,    as   he   supposed,    ou^.   of   the   way,    but  was      .w>^  . 
hit   by    the    failing  bag.         The   judge   directed   the   juj-y    that    if 
they    thought   P.    lost   his   prt^sence    of  inind,    by    tlie   act   of  D's 
servants,    and   in   the   confusion  ran   into   danger   and  was   hurt, 
a  verdict   could  be    given   to  xiim.        Was    this   correct?        V/hy? 

4.  D.    in   searching  for   his   cattle    loft  P's   bar*  down, 
whereby  P's   sheep   escaped,    were    to  tally   lojL,    and  as    the   evi- 
dence   tended    to   show,    by   being  killed  by   beai's,.        D.    asked 


NOTES    ON    TME    OOG TRINE  OF  PROXIiViATE  CAUSE.  60 

the  Vourt    to   chai'f^e    tlie   jm-y    that    if    they  found   that   bears 

killed   the   sheep   after    their   escape,    P.    could  not  recover c  c-c^ut/ofi,- 

This   v;as   refused,    but    the    court    did     .charfre    tliat    if    they    found  "^^"^^^^^e^. 

Do    left    the   bars   dovm,    and  the   sheep   escaped   in  consequence, 

and  would  not   have   been  killed  but   for    this    act   of  D,    he  was 

liable.      The   jury  gave   a  verdict   for   P,        Was    th^re   error?     Why? 

V^*^^  *■,-    V  nriyt^U-iu     sr  7  n.j'h-^  .    4  jL7  /  t  76). 

^'         Po    sued  D.    allegiiig    tliat    tlu3ugh  D's      negligence   fire   was 
coiimunicated  from  D's   steamboat   on  the  river   to   D's   elevator 
120   feet   high,    on   the   river    bank,    and  from    Uiere    to   P's   saw 
mill   558  feet   away,    and   then    to  P's   lumber   pile   3P8   feet   fur- 
ther  awai' ,    all  because    of  an  unusually   strong  wind  blowing  *-^* 
toward   the   mill   from   the   elevator-        The    jury  found  a  verdict     A^^^-^r^-o-    . 
for   P.        D.    claimed   there   was   error   in   this  because    the    court, 
U!:on  request,    refused    to   charge    that    the  proximate    cause    of       tvo  juy/\yv^  , 
P's    loss   was    the   bui-'nlng  of    the   elevator,    and  not    the   negli- 
gence   of  D,    in  setting   it   afire »        Was    there   error?        V/hy? 

6«        P..    sued  D,    £   railroad  company   for   destruction  of  his 
wood^    by  a  fire   alleged   to  have   been  caused  by    the   negligence 
of  Do    in  allowing  dead  brush  and  weeds    to    accumulate    on   the 
rirht   of  way,    catch   fire    from  its   engines,      and   spread  on   to 
the   adjoining   land,    and  continuing   for  neai^ly    two   days,    ex-  Z\/xjf-^  -^ 

tend  over   the   lands   of  sevoral   intervening  owners   for    a  dis-         (^.  rw  . 
tance   of   over    two  miles,    and  finally   damage   P.        Motion   to   dis- 
miss   the    case    on   the    ground  of  resio  . ernes s    of    the      damages, 
Mv.s  made   and  overruled.        Was    there   error?     Why?    . 

7o        D's  railroad  was   close    to   the   bajik   of  a  certain  creek; 
one  rainy  day.    after   a   train  had  passed,    a  land  slide   occurred, 
so    that   a   train  loaded  v/i  th  oil,    following  about    ten  minvutes 
later,    was    thi'ovm  off   the    track,    and   the   oil   cases   overturned, 
the   oil   spread  out   on   the   waters   of   the   creek,    then  much  swollen 
by    the   rairt,    took  fire,    and  was   carried  several  hundred  feet    to 
P's   property  wh^ch   it  partly    lestroyed  and  for  which  P.    sued. 
Tlie    court   was   asked   to   direct    the   jviry    that   if   they   believed 
from  the   eviden-e    that    tha  accident      complained  of  v.-as    the  re-    Aw  -8/uv»n. 
suit   of  D's   negligence,    and  by  reason   thereof,    the   oil,    ignited 
by    the    engines,    ran   iiy^jediately   dov/n   the    creek,    whereit  was 
carried  by    the    ciu-'ent.a   few  minutes,and   set    fire    to  P's   prop- 
erty;   P-    should  recover.         This   v/as   refused,    and  the    jury  was 
instructed   that  upon    the    facts   Pc    could  not  recover.        Was 
this   error?        Why?  y  ^  jr    iPc^w...^    JX^^^C^  .2-^5 

'.       ^uit   by  P.    as   executor    of  A.,    under   statute   giving 
ri-ht    to   sue   for    death  by   wroxigfal  actc         It  was   alleged   in 
substance    that    through  D's   negligence   A.    was    injured  in  a 


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ll(jTi<.S  .ON    THE    'OCTRIIIE  OF  PROXIMATE  CAUSE.  7. 

collision,    whereby  his   spine   was    so   affected   that   he   becamede- 
rair-ed  and  insane,    and  finally,    after  8  months   of   illness   and 
suffering  diorinc  which  period  he   liad  all   sorts   of    illusions,    and 
forebodings,    took  his   own  life,        D,    demurred   to    the   declara- 
tion,   and  this   was   sustained.        V/as    there   error?       Vifhy? 

9o    •    D.    wrongfully  entered  upon  P's    land  and  ousted  him 
of  possession  While   D.    was    in  possession  he    tore  down    and 

destroyed  part   of  a   building  which  P  used  as   A  stable.        In 
this   stable   was    a  feed  box   in  which  Po   had  placed  for   safe 
keeping  $2,000   in  money.        This   was   lost  when    the   stable   was 
destro/Qd.        Po    sued  for  the    destruction  of    the  stable  and   the 
lo."8   of    the   $].*,000,        Should  he   recover?        Way? 

10.      D«   procured  arsenic,    put    it    in  a  roasted  apple,    and 
gave    it    to  his   sick  vfife,    intending   to  poison  her.        The   wife 
tasted  it,    out  not  knowing  it  contained  poison,    gave    it    to  A. 
who  was   killed  by   ic<.        Under  Lord  Campbell's   act,.  Po    as   exec- 
utor   of  Ac    sued  Do        Snould  he  recover?        Why? 

11 »      Po    sued  Do,    a  municipal   corporation,    alleging   that 
it  negligently   allowed  a  pit    to  be    di.ig  and  ren^in  open  along 
tha   side  walk,    wherein   the   plaintiff,   without  any   fault  on  his 
part,    fell  and  v;as    injure  do      Do    answered  that  Po    was   a  con- 
stable who  had  arrested  one   He    -and  was    taking  him  to  jail,    and 
when   thf-y    came   opposite    the   pit,    Ko    tlirew  Po    into    Ihepit,    and 
escapedo        To   this  answer   P.    dcmurredo        Should  tlrB   demui^er 
be    sustained  or    overruled?        Why? 


.:2.      D,    sold  .aA  &   T,,    boys,    12   and  10   years    old  pistol 
cartridges,    loaded  with  powde:'  .and  ball,    and   shov,red   them  how 
to  use    the,-n.  in  a  toy  pistol   thoy   owned-      Shortly  afterward 
the   loaded  pistol  was    left  lying  on  the   floor   at    the  home   of 
the   boys;      i.  was   picked  up   by    the   boy^'    little   brother   6   years 
old,    and  fired-    the  ball  hitting   T.    from  which  he   die  do      P,    T's 
fatrer,    undei    Lord  Csmpbell's   Act   sued  D,        Should  he  recover? 
Why  V 

• 

13 »      D.    carelessly   left   a   truck   loaded  with   iron   in  a 
public   street  for  20  minutes   or  more    •'n   the   evening;      the    iron  w.' 
no  neglrlgently  placed  as    to  easily   fall   offo        Po    and  another 
boy,    tach  about  -7     yea^s    old,    were  walking  along   the   street   on 
the   opposite   side  when  L,    a  boy  15  years   old  called   to   them  to 
corns   over    and  -ee   him  move    the    truck;       this    they   did,    and  while 
standing  near    the    truck,    L,    took  hold  of   tSie    tongue,    moved  it, 
and   the   iron  fell   off,    and  injured  Po  The    jury  gave   a  ver 

diet   for   P.        Was   this    correct?       Why? 


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NOTKS    OM  THE  IX)GTRI;'E  OF  PROXIMATE   CAUSE.  80 

14-      P.    a  boy   about    15   yesa-s   old,    while   in   the   observance 
of  ciae   care    in  walking  along  one   of  D's  much  used  sidewalks, 
elevated  about   6   feet   above    the   ground  and  unguarded  was   either 
inadvortently  pushed  off  by   the   shoving  of  one   boy  by  another 
agai'.^.st  him,    and  was    severely    injuredc      It  was    contended   that 
even   if  D=    was   negligent    in  leaving-  suwh  an  unguarded  walk,    Do 
was  released  by   the   negligent   act   of   the   boy  doing   tiie   pushing. 
Jury   gave   verdict   for   Po        Was   there   error?       WhyV 

15c      Po   was   an  outside   paasenger   on  an  oirmibua   between  Ho 
&  K-        In   descending  a  hill,    the    'bus   overtook    .a  cart,    and 
in  ovdt?r    to  pass    it   pulled   to   one   side    on   to   the    traoi     car 
ti.'Eck;      a   trat):  -car  was  at    the   tine    coming  up   the  hill;      its 
di-iver   made   no   effort    to   stop,    but  ran   into    the 'bus,    and  P. 
■fi'as   injui-edo        He   sued  Do    the   owner   of   the    tram  car   line. 
'i'hf;    judge    cliarged  that    in  order   for  P.    \,o  recover    the   jury  must 
find   that    the    injury    to  him  was    due   solely   to   D's   acto        Was 
this   error?        Why? 

16 o      P,    sued  Do,    a  R»   R.    Co.    for    injury  by  firo    to  P's 
woods,    alleged   to  be    due    to  D's  negligence    in  the   construction 
axid  management   of   its   engines.        Do    as   ked    the   covirt    to  charge 
that   if,    after   discovering   the   fiire,    P.    neglected    to  use  r'^ason- 
abie   and  practicable  jjieans    to   suppress    it,    he   could  not  recover 
for    subsequent   dama.geGo      This   was  refused=      Was    tl-iere   error? 
V/hy? 

17.      D»    owned  land  used  for   athletics,    adjoining   a  private 
road  with  a  foot  way   along   side..      To  prevent  persons   driving 
vehicles   uc    to    the   fence    .and  looking  at    the   sports.    Do    placed 
wooden  barrj.ers   iilled  wi  ;h  projecting   spikes   across    the  road- 
way,   leaving  a  place  wide    enough   to   drive   thi'ough,    but  which  was 
closed  by   a  polo   when  the   sports  wftre   going  or-        P.    having 

occasion   to  use    the  road  one    dark  night,    by   feeling  his  w?.  pasised 
safely    through  the   opening   in   the   road,    and  then  turned   toward 
the   foot  path,    where   he   come    in  contact  vi  th  one    of    the   bar- 
riers which  had  besn  removed  by   an  irnkxiown  person  irom  the  voad 
way   and  stood  up  along    the    side    of   the   foot  way.         It   was   ad- 
mitted  that   Do    was   negligent    in  placing  the   barriers    in  the 
read..        Was  he   liable   to  F:        Why? 

I80      P's   servant   So    a  bey,    got   into   a   quarrel  with  Do 
in   the    street o        D.    took   -^fter   S.    with  an  axe,    and  I      in  order 
to   save   himself  ran   into  P's    store,    and  back   of    the   counter; 
in  uoJng   so   So    r-'^m  against    the    faucet   of  a   wine   casJc,    knocked 
it   out,    and  the  wine   was    lost,        Po    sued  D     for    the   losso 
Is   D„    liable?       Why? 


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ITOTES  ON  THE  DOCTRINE  OF  PROXIMATE  CAUSE.       9, 

19.   Fire  from  D's  locomot, ive  upon  an  elavated  railway 
fell  upon  a  horse  attacher  to  a  wagon  brslow,  and  upon  the 
hand  of  the  driver,  causing  the  horse  to  rmi  away.    The  driver 
after  failing  to  stop  the  horse  by  running  him  into  a  post, 
intentionally  turned  him  against  •^he  curb  stone;   the  ragon 
however  passed  over  the  ciirb.  the  driver  wag  thrown  out,  and 
P.  was  run  over  and  hurt.   It  vis.q   admitted  that  D=  negligently 
allowed  the  fire  to  escapf;.    Is  he  liable  to  P?   Why? 


^v 


•0.  P.  was  engaged  to  iru-a-ry  R:mDo  faltely  slandered  P. 
by  words  not  actionable  in  th^nselves.  spoken  to  B.  whereby 
Bo    broke    the   engageii^>nt  with  P.        P,    sued  D.        Is   she   entitled 

to  i'ec-.over?         V/hy? 

21.      P.    had  entered   into  a  contract  with  X.,    whereby    the 
lauter^    who  wad   an  expert,    undertook   to  manufacture   for  Po    out 
of  materials   furnished  by    the   latter,    all   of  a  certain  kind  of 
brick,    and  at"  the    time,    required  by  P.,    and  not   to  engage    in 
the   service   of  any   one   else    for   5   years »        D^    knowing   of  the 
relation  existing  between  Po    and  Xo   wrongfully    induced  X.    to 
leave   P.    and  make   thw   same  kind  of  brick  for  him.        Po    sued 
D.    can  he  recoveri'         Why? 

22 o      Po    was    the    ov;-ner    of  valuable   buildings,    upon  lots 
adjoining  a  city  street;,    on   tne   opposite   side   of  which  was 
a  river  0        D,    a  railroad  company;    filled  up   a   portion  of   the 
river   here,    and  occupied   it  with   its    tracks,    yai'ds,    etc, 
increasing   the   distance   to    the  r  ivei*   from  P's   buildings  nearly 
800  feet;    a  fire   accideutly   stai'ted  in  P's   buildings, 
and  because   of    che    increased  distance    the  fire  depart- 

ment's hose  would  not  reach   the  river   so   as    to  get  water    to 
put   out    the   fireo        Po    sued  D.    fo-'    th'i   loss  resulting,    m  Can 
he  recover?       Why? 

23 0      D's  hor^se   strayed  on   to    the  highway,    and  while   there 
kicked  P's    child,    the   latter  not  being  negligent.        D,    had  no 
reason  for    tliinking   th3  horse  v/as   vicious-        P.    sued  D.    for 
loss    of  service   shown.        Should  he  recover?        Why. 

24.  D's  horse    strayed  upon  P's    land,    and  while    there 
kicked  and  serioujly    injured  one   of  P's   horses;      P.    sued  D. 
Should  he   recover?        Why? 

25.  D.    a  deliveryman  left  his  horse   and  wagon   standing 
in   the    street  unvvatched  and  unliitched  for  about  half  an  hour. 
Several   children  gathered  around  the   wagon,    and  P.    a  boy 
between   6   and  7   years    old  undertook   to   climb   over    the  wheel 


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rOT^S   ON   THE  DOCTRirE  OF  PROXIMATE  CAUSE.  10, 

in'  0   the   wa,p;on,    just   as   anothei-  bo7  began   to   lead   the  horse 
fov.vard,      Po    fell   off  and  was  rrn  over   and  seriously  hua-t.        He 
s'uOd  D.        Should  he   recover?        Why? 

25.      ?,    was    owner   of  a   donkey;      he    tied  his   feet   tOfi;etl«r 
aad   turned  him  out    into  a  nerrow  road   to   pasturi3o        Some   dis- 
tance  away   there   was   somewhat   of  a  hill    in   the  roadway;      D., 
who  had  occasion   to  pass    en   the  road  with  his    teem  and  wagon, 
was   walking  along  back   of   the   wagon,    when  it  reached   the    top 
of   the   hill;      the  horses    then  started  to   go  much  faster,    and 
going   down   the   hill   at   a   "smartish  pace"    loft  D'^.    a^   a  fainher 
distance   behinil.         In  go  in^   down   the   hill   the    team  and  wagon 
\3ered  off   to    the   side   of   the   road  and  ran  over    the    donkey, 
seriously   injuring  it.        P.    sued  Do        Should  he  recover?        Why? 

27.  D.    nen-iigently   left   a  pole   across    the    street    in 
front   of  his  house   which   he   was  repairing.        ITeai-    dusk    in   the 
evening,    but  while    the   pole   was   easily  visible   ICO   yards   away 
P-.    came  riding  along  at   a  rapid  pace,    his   horse   stumbled  over 
the   pole   and  P.    was    injm-'edo        J-Ie   sued  D.        Should  ht  recover? 
Why? 

28.  Do    constructed  a  buggy  for   C,    but   did  it  negligently 
and  deiectively.        Cc    sold   the   buggy    to    2«        Soon  afterv;ard 

Kv    and  P=    were   riding    in    the   bu'^niy^    and  because   of    the   defect, 
it   bi'oke    down,    and  P.   was   hurt.        He   sued  D.        Can  he  recover? 

Why? 


2S.      P.    purchased  a   ticket   irom  Cincinnati    to  Hew  York 
over    the   fast   train   to   go   by  Pittsburg.      Owing   to    the   negligence 
of  DSs   agent   at   Cincirjnati    in  labeling  P's   bag^^af-e ,    thiS   was 
transferred  at   Pittsburg   to   a   slower    train,    which  *fith   the 
ban-gage,    was   destroyed   in   the   Johnsto^m  fl'ood.      P.    sued  D, 
for    tha   loss.        Should  he   recover?     Vvhi^? 

.30.      D,    and  P.   were    standing  near   a   ditcn  when   they  got 
into  ar.  altercationo      Do    wi'ongfully   assaulted  P.,    knockir^ 
him  down,    P.    falling    into   the    ditch  and  broke   boti".  arms.        P° 
sued  D.    for   the   whole    damage?        Is  he    so   Irable? 


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.\':iiiQ:     Si\j     ■-■■■v^'o   az'-'i  h.lKS'.   ^  -o.*-^   s^fi;!  '%^  9fe-5-?  ^^-?    ^>r:    ;;'^'- 

If  V.i- 


L  E   C   T  U  B.  E   S 


0  N 


THE   ITJIICTION   OP  TIIE  PniMCISR   IN  IMDUSTRYc 

B  Y 
TnOM/^£  L.    GBEEiEl, 
(Mana^jGT  of  Audi-t   Company  of  New  York)=. 


Reported  by  A.    C<.   Heckler. 


UNIVERSITY     OF     M  I    C  H  I   C  A  N< 


Edwards  Bros. Publishers. 


Ann  Arbor,  Mich. 


1901, 


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^  ITU'CTIOiT  OP  TiT".  PITMCrR   TJ      IT^USTITf. 
L  '^   C   ^   U     ^  "^      lo 
oOo 


1:1   a~)  )eari;i-;   before  you     this   afternoon  for  tb.e  first 
of   oixr  til^s    on  t:io  fu-.iction  of   t^.e   financier  in   industrial 
or;ani3ation,  I   feel   IV':'^.  be^'^'iniin  ,  witii  the    senti  lent   V7!iicli 
Goethe    outs   i:"i  fie  nout:i  of  Me  ohistocles ,    who   is   asked:    "Are  you 
a  virtuoso";    to   w]iic'i  he    replied   "0   no;    the  wioh  is   c^reat;    the 
slcill   is   only    so    so". 

That  this   is   the  true   attitude   of  i.iind   in  ivliich  to 
approach  the   suloject  under  discussion  v/il]    appear  clear  to  you 
I   a'l  sure  as  we  proceed.      TJiere   is   as  yet   no      science   of   industry; 
nor   as  yet   a  standard   of    i}idustrial   ethics;    nor  can  we   su  ;  ;est 
any  concrete  statement   even  fro  i  the  business   point    of  vle^r 
of  the   eicact   conditions   of    industrial,   safety.    The  ci  rouii  stances 
of  the   case   require   that    I   should  merely   e:cplain  so  .g    of   the  ac- 
tual practices  whic:i    Prevail   in  the   industrial  vrorld  and  the 
reasouj     whic.i     "nave  thus   far  i.if  luenced  our  captains   of  industry 
and  finance. 

'■'./^lile  tne    natter      about  which   I   shall  tare  to  you 
relate   alao   to    s:mll  corporations,    fir^is,    and   i;idivi duals   also, 
tjiey   are    really     throwii  into   clearer  lijht     by  con.3ideri.i:  then 
in   relation  to    large   corporations. 

Let   us  berin  ivifi  the   promoter.      It    is  not   lon;^    a^o 
since  the   nro  loter  was  thou^_,^ht   to  be   in  .a  pretty  poor  business. 
I   reaeviber  a  case  ■"•/Jiere   .a    lan  was   sued  for  calling';   another  a 
proioter,   on  th.e  [ground  that    it  was   an  opprobrious   epitliet. 
Indeed  the  record  of  th.e   pro  loter  up  to   recent  years  lias  not  been 
alto';ether  cle-ui.       lisleadin;   statements  'rere   .lade  to    secure 
desired  co-operation,    in.i  other     dis'ionest   practices.      Indeed 
to   the   old  ti  10    promoters  mijlit   be    applied  the    remar"':  once     •a.de 
by  Senator  Depew  when  opea^dLn-;   of  certai:a  railroad  "len,   that   the 
Recordin:  A-n^'ol  followed  tie.i  around  with   a  bucket   of  tears 
and  blotted  out   w]iat   they   said". 

And  yet    I   a. linclined  to   thin^:  tiiat   even  in  those   early 
days     the    oro.ioter  siiiiied  as  raich  fro  i     1-^.0"":   of  ^Qiowledce  and 
^fro  I  force   of  circui-istances  as  f ro.i  deliberate   intent.    I::;nor- 
ant   as  the  invest ii-^^   public      in  thsse   days  were  of   the  first 
principles   of    industrial   success,    no   statements   could  claii 
there   attention  w-iich  werd  not    ornainented  by     presentations 
very   alluring. 

But  modern  conditions    require  the  promoter  to  be  a  dif- 
ferent beii-g.      His   difficulties  are  i^recit ;   and   so    are  his    re- 


i./i.  i.H£i-i?"  ; 


&^ri 


r—-'l''(^%-^^^.^'^i^''-'    ^-'■•' -b^ -^nt-i ,-:-,:■-. -r--'^--^   '-- 
•  :•    -.oor  jx;  s^-^   I-    •■■^   ^-^  'V^^?i^:^Grr'i^    '^^^n-^^'; 


r.rc  .Booi,'-.-.  -t    ■■^e-.o  .'-■'■•^^^  ..•  ■    -  v '^t^^'lv^'^'^- 


'■•n  ■^'^c'^T')'  o'r  t::^  ::TJA::ci~n  ih  i't^ustic-. 


wards    if   'lo    is    sijccessful.      I   sii^roose   all   of   us  "I'lve  iiad   soao 
ni-cperience   in  tryii;     to    ^resuode   a  nw.iber  of   our  fellovnen  to 
follovr    30  iQ   lin-^   of   actiO'i,    per.ia^s   i:i    :)oliticT,l  affairs,    oer]ia;33 
in  collTfje  affairs,    in  wJiic'i  t'noy  were,    i.iterested  only      as  £jood 
college     ion  or  '-.ood  students;    and  you  ''ciiov'/  :iow  hard   it    is   to   i^er- 
suade   a   set    of  nen   to   do   so  let'iin^    of   that    sort  v/uic-i  you  tliinlc 
pos3i"."ily   is   for   tlie  lisst    intorests   of  t^iose  very  7ersous,and 
for  tjie   collese   a.s  well.      ]?ro;.i  thi.s  we   -lay  judci'e  of  t]ie  c'laracter 
of  t}ie  difficulty  of    reconciling;   a  nun'oer  of   opposln';     i:inufo,otur- 
ers,   w]io  "nave  exa^vjerated  notions   of   tlie  value  of  tlisir   own  prop- 
erty,   and  am-iious  to  take   advantace   cf    every     sliift    and  turn  which 
the  ne.iotiations   ■.  la;^'-  talce.      The  roan  who        can  Marshall  these 
forces,   "by  cajoD.iix;   here      and     persiiadin^  there,   "by  .appealing;; 
to    individuals  both     in  public    and  pr.lvste,    not   foi-cettin.i  dur- 
ing;  all  this   ti  le  that  the  outco^ie     of   his  ne^^otiatiojis  laust 
be   suc'i  as  will  appeal  to  financial  :aon  as   soiAnd,    and.  to  business  . 
men   as   founded   on  /^cod  business   principles,    the  uan  wlio  by 
natural  ^ifts   and  by     hard  labor  succeeds      in  construictins  out    of 
such  warriiTg    ele:.-.ients   a     coiabination  that  will  stand  the  test 
of  close   exp;.nination ,    is    one  who    deserves   rev^ardc. 

It   is   often  inpossibl-)   that  nerc'nants      and  ..lanufactvirers 
can  fori  a  coabination   or  consolidation  of  t".ie:.iselvesc      It  i.iay  be 
that   trade  wars   and  trade   jealousies  iiave  been  carried  so   far 
that   prominent  uen   do   not  care  to   speah  to   each   otier   if  they 
meet;    or   if   preserving;;;   a  decree   of    ooliteness   toward  eacli   ot]ier, 
th.ey  still  have  feeli;,^    of   dislihe   or  a"versionc 

I  would  say,   ha; over,    tliat   I   happen  to  'lave  wit^i  iiie 
for  your  use   articles   of  a^reeiient    of  one    of  these  covisolidations 
whic"!  was  "Put   to';ether  by  the  people  the/:iselves»      Tlie   leadiix: 
nanufacturers    'Ot   aro^in'':   a  table   and  t'lresioed   it    out.      It    is  .an 
ideal  plan. 

It    is  very     unusual  to   find  a  cOifoinatiOxi  of  o:);iosin-; 
interests  where  a  very    laiije   -proportion  of   t"iie  total   c.a :)itali3a- 
tion  iQust   be    raised   in  casli  before  the    yl'xn  is   consu  LXited.      A  few 
years   a^o    it  was    indeed  possible   in  a  few  instances  to    sell  aLao   st 
the   entire  capitalization  of   stocks  aiid  bonds,    to    the   nublic 
at   prices  which  en.abled  the  proi.ioter  to   zx^i/-   eacli  i.ianufacturer 
his   price   in  cash  and  have  a  large   suin  left   over  for  liLiself . 
But  those  days  are  gone   and  seen  never  lilcely  to   return.      At 
the  present   tLie   no    plan  of   consolidation  or   enlargement      can  be 
financed   in  Wall  Street  where  the  nanufacturers   about   to  be  co  i- 
bined  den3nd  any  considerable   proportion  of  the  valuation  of  t!jsir 
business    in  actual  money.      It    is    found  by   f inane i?-l   people  that 
it    is   not  cood  policy  to   buy   out  manufacturers,    as  they     believe 


'^s  ^;t  ^-^'i  ^^--^  -  ^  -  ^'  °^  ^'^  ^^^  ^-  ^.-^^^ 


r,,.,'      '../'      ._,;5{/)-  ijijsi,-  ft^:!'     >?g>^4'-  ^Pi-'  ^i04-^«Ji:^<ii:*«»^'  «^ 
":'..':.,:.. .,,-'-     .,■'■•       ■ik^% i^mi- ^'''^  ^*>'^,f.■•'•■.•\Vf■  -t'T-'-l!-  W"!"  '?^K-'^!$it!':  *^:?-    #*«:■  S#^'  -^^  ?*fe^" 


■'^r^i::! 

•.       .   ■             ^ 

,-,irogr  '©Ji.-iw;    4,> 

rr'"    ^' 

c  ^.  5:1  :  : 

.+  5     . 

'iL^fe    Q-- 

,,Q..j)i-u^;^'- 

■  ■-'r:.- 

•    Q^f    t   . 

-•    '   VJ     >- 

^<4' 

j:!  l 

...  r+j;^ 

■r          :,t  ic> 

'TT.  iJTT'CT^io''  or  ?:-n  I'i:tamci"!:r  r"  i"n:)USTRY. 


t'lat  the    Manufacturers   sliould  not   aslc  investors  to   purchase   shares 
which  they   the  is  elves  are   not   will  in"   to   receive. 

Another    latter  waich  has   forced   its   attention   on  V/all 
Street  "by  experience   is  that    if  the  consolidation  is    epta'blislied 
on  conservative   lines  the  propmoter  should  be  willin^^  to   accept 
for  Jiis    services    a  proportion  of  the  cojiiion  stoch  of    tJie   new 
company, and  that   the  bonda   or  perf erred  stock  of  the  proposed 
company   should  be    reserved,     for  S3.1e?  to  the   ^^ublic  >   and  otiier 
purposes.      This   is      a  safe  test  which  t:ie   or'dinary   investor  can 
apply  to   a   3:reat     lany  of  these  corporations.      It   is   considered 
nov/  a  mistalce   in  the    etliios    of  financing   for   'iiic  promoter  or  any- 
body concerned  to  talce   any  of   the  bonds    or  preferred  stoclc  and 
put    it    in  h.is    own  pec  last . 

To  'JO  baclc   a  noiient ,    I  was   asked  before  tJie   Industrial 
Contiiisslon  whether  it   would   not  be  advisable   for  us  to  have   laws 
passed  v/hicli  should  define   the   status   of  the  prospectus,    and  also 
state  wlxat  the   proraoter  was   doinc ,    the    details   of  his   plan,    etc. 
I'.s   rejjards   the   "orospectus,    I  an  inclined  to    think  tliat   if  we  had 
had  such   a  law  perhaps  twenty  years   a^jo    it  would  ha.ve  been  .^-ood 
for  us,   but  we  could  laardly     expect   it,   because  it    is   too  mtich 
to    think  that   th.e  coixiercial   situation  shall  be   anticipated  by 
law.      The  trouble  with  a  ^reat    deal   of  the  conditions  wiiicli  we 
are   discussirr;,    and  which   sorae   of  us  thin!'',  are  of  {;rave  concern, 
is   largely  doe  to    tlie   fact  t'^at   the  pace   of   our  covrtnercial 
develo-7nent  has  boon   so    swift  tJi.at  the     et3iics   of  tlie  case  have 
not   had  a  ch?-nce  to  catch,  up,      Th.e    "ju'  lie   conscience,    the  public 
intelligence,    'iTiist  have   a  chance  to   think  over  these   things-)   before 
we  cani^iake  up  our  minds  what  we  ought  to   do,    anid  of  course  by  that 
tiine.a  good  de,?.l   of     wron^-   perJmps  lias  been  done.      At   the    sajae 
ti  le   I   Tiia  not   at   all  desirous   of   spealcin^  against   tiiose  persons 
who  take   advantc^ge  of  that  circu/istance ,   because   it   vTay  be,   and 
very   likely  is,    in  a  great     lany  cases,   they  are  thernsd  ves   as 
ignorant   of   the   ethics   of   the  case   as   the  parties  witli  who.n  they 
are   dealing.      Something   of  that  kind   should  be  thought   of  I   think 
when  discussing    such  a  career,   for  example,    as  the   late  llrday 
Gould.      LIr.    Gould  was    in  advance   of   his  tirae.      He  did  a  great 
many  things  which  we   now  believe  to  be  wrong,   and  v^hich  therefore 
would  not  be  done  ,    and   I  might   almost    say   could  not  be   done   in 
\?.all  Street  today.      You   Icnow  it    is   the  boast   of   the   lav/  of  Z^ngland 
that   they  keep  pace  wj.t'i  the    development  of   co'nmerce,   and  there   is 
a  great   deal  to  be    said   in  favor   of  tho.t  view-      But  that  has  been 
exceeding; 3y  difficult    of  late  years. 

It   is   sonetiues  said  that   tiae   tendency   is  to    eliminate 
the  work  of  the   promoter  on  the   one  :iand,    a.nd   restrict  his  re- 
wards  on  the   other.      For  tiyself   I   see  no   reason  why  the  office 


jiiVp*l^.'    fiai 


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■"'- ■  -     ■  ■    ■  .  j-iv.'  e  oij'c    QOf^r-^  ■^^SX-T.  o.£>4-. 


'£W2  FUIICTIO.  ■    OP  TT:  PHTAITCITUR  IIT   I  IDUSTKY". 


of   the    "jranoter   should  die  out;   but    on  the  contrary  I  think  it 
is  ■becoiiin^:   a  re'".o:.''nized  and  reputable  business »      Pox  -orouotinj 
if   done   thorowjhly   and  conscientiously,   with  reference  not    only 
to   the   coiiibinin';   or   enlarr;incl  of    tlie  cOi-ipanies ,   but   aTiso 
to   the  investing   public  ,    is    adv ant- a^' ecus  .  to   all  concerned. 

T:ie  best    insDance   of  a  successful  pronoter   at   tiie  pres- 
ent  time   is  'ir*    Charles  R„   F'lini  <.      I  \vould  say,   however, 
tliat   Mrc    Pierpont  liorsan  is   not    regai'ded  as   a  promoter, m  the 
siense   in  which  I   axn.  now  talking   to   you,   but    as  a  banker,      Ilro 
Flint    i^    so    successful  with  j.iis   companies   that     he  can  borrow 
unlinited  capital,  without    security «      I   tliink  it   would    reiiuiro   a 
nuinber   of   failures   on  Mr.   Plint's   pait  before  his   credit   could 
be    reduced  very  materially,   because  thougii  a   reputation     is   one 
of   the  Iiardest   things  to  build  up   in  We.w  Yorli  City,    it   is   eqimlly 
hard  to   destroy  when  once  aade. 

Mro   Plint    is   so    successful  about   these   tilings  that  he 
will  no    longer  go  about  the  country    su  ;^-esting   to   pecijle  to   con- 
solidate their  businesses.,      He  will  take  up  no  business  until  the 
people     themselves   coiie  to   hhi  and  ask  hiii  to   put   the. a  together. 
On  the   other  hand,   this  great  combination   tha.t  lias  just   been  forni- 
ed,    the    steel  trust,    there   is   eveiy      reason  to  belheve  r^as   actu- 
ally thrust   on    Ix-o    Pieroont  Ilorgan;   he  not    only  did  not   solicit    it 
but   he  did  not   want    it;    but   he  had  to   take   it   from  ]iis   point   of 
view- 

Pinanciers   arf  not  now  satisfied  witli  general   statement 
and  glowiry^    descriptions.      There  must  be  a  thoroufjh  exomina,tion 
of    existin-   conditions.      A  \7all   street   naii  will  touch     no   plan 
no  natter  how  glowin:    tb.e  future. until  you     tell  him  what  has 
been  done    in  tiie  past. 

It    requires   a  vast   range   of  general   inf  or iaa,ti on , 
together  with  a  close  Icnowledge   of  business,    to    look  very     far 
into   the  future   of    an  enterprise      In   the   study  of  the  conditions 
of  business   success  ,    I  have   sometimes  thought   that  we  do  not  malce 
enough  of  the  use   and  training   of  the   Imag inaction, so   that   the 
mind  may  leap     freely  yet  truly  from     the  Icnovm  to    the  wholly  or 
partly  unknown.      Why   is  the  opinion  of  Secretary     Gage   of  va.lue 
v;hen  the   opinion  of  somebody  else  would  be   disregarded.      There   is 
first,    the  knowledge  of    some   facts;    second.    e:cperience;   third, 
the  possibility     of    "tihe  use   of  what  we  call   iua^gination.      Su.ch 
a  combination   of   laiowiedge   and  iuagination   is   needed     and  when 
found   is    a  inan  deserving:    of  great    reward.      He   is    especially  need- 
ed at   this   time  wnsn  the  brightest   of   all  are   in  doubt   as   to   exact- 
ly hov/  all  these  various    industrial   combinations  are    really  coning 

out.      I  do   not  mean  fro  \  the  point   of  view  of   the  legislature, 

but   fro  1  the  -Doint    of  view  of  the    investor.      It   is  a  very  interest- 


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T^n  ruiTCTio.i  OP  •:::r^  tlt/mtckr  iit  i dustry. 


int      subject   and   it   is  largely  speculative    in  the  ::ood  sense  of 
til  at  word. 

Generally     speaking      the   result    of  the   tendency   in  V/p,11 
Street  today      is  to   eliminate  chanoec      The   effort   of   e-vsr^j  vaaia 
who  v/ants  to  make  any  noney      in  \7all  Street   or  lousiness   is   to   do 
away     with  uncertainty,    and  this    is   a  very  power-fvil  jjf actor  in 
broadening   our  view  of      industrial  conditions. 

The    disnger  to   the  banlit^r  and  investoi-   is   ina.ccurate 
or   inadequate   inf orrflation.      I  have  been  taHciiicj   as  you  v/ill  notice 
about   the   investor, and  have    said  nothin;;;  about    tiie  consaier. 
I   do    not   \novr  that   tliis   evening    is  a  proper  ti:i8  to   talk  on  tliat 
subject,   but   I   do  think  that   a  [^tqoX  deal   of  our  troubles  about 
the  consui.iln^   public  v/ould  be   done   e\73y  with  were  we  to  keep  our 
eye  a  little  closer  on  the   investor^ 

Twenty     years   a{;:o,   as   1   said    ,we  ::il^"ht  possibly     have 
been  better  off  h-ad  v/e  hs.d  so.ie  such  law  as   there   is  -in  the  IlnG'- 
lish   law,    to  protect      investors  ^^^ao  purchase  under  th.e   teritis   of 
t"i"!     prospectuses,   but  we  are  not   altojetlier  helpless.      The 
r^oneril   lav/  of   eac!i  state   in  t'ne  union  is   a  protection.      I  r-^self 
"raow  of   two    i:ast.ances  wit'.iin  a  year  and  a  :i£!. If   in  wMch  tlie  pro- 
moters  nj.id  the  bankiit;   house  thT,t  broti^jht  out   one   particular 
co'ipany  were  sued  or  threatened   suit  by  the  Uiiderwriters  for  ob- 
taini.r;  .loney  under  false   pretenses,    and  they  Iiad  to   c o.-iproiiiiseo 

But   the  greatest   protection  the   investor  has   at   the 
present  tl.ie   is   not    in  the    law,    strictly   spe.ald.::^'j- ,   but    in  the   re:)- 
utation  of   th.e  ''•-.mlci ;!,■:;   ]ioi.ises  who   finance   and  brlr^   out   these 
various  projects.      Unless  yon  happen  to  ^oiov;   sonethinc   alwut   it 
you     will  be   surprised  g.t   the  care  with  which  the  banlcinj;;  houses 
investi.::^ate  these  various    projects,   beceuse  the    reputation  of 
these  houses    is  there  uost  valuable  asset,    and   it  v/ould  be   the 
f';reatest   folloy  on  their  part  to   put    out   enterprises  that  were 
doomed  to  failure. 

There   is   another  phase   of  Wall  Street   as   a  financial 
center.      You  know  tha,t    forei^jn  nations  liave   lately  been  coming 
to  \7all  Street  borrowing  raoney.      You  know  there  has  been  a  great 
deaand  for  inoney   and  at    the   same  tii^ie   rates   of   interest   on  good 
securities   are    rulin,g   l.ov/er  than  ever  before.      There   is   a  uatter 
that   deserves    attentiono      The  ai-iount    of  money  which   is   in  what 
I   i.iay  call  a  seni-trust   is   increasing    in  great   rapidity.    Tiie 


.i".r.v.V  c:l    -^n/;;-.;vie:t    .                /■:■     '  :.j      ■;  .x;-.!;;c;r;^     v,!;i.?-.';£ji;: 

•.-ol  :■.;."'' *')-".■            :  ?r4J'   3fi.3tSM^-i-*>'^&  yv.0.:.>-.P    ^^^.■iv:.,                                              j 

■•;      :    f!ftl^  i^^r   ^e?;-   7<<£:i                         •  .          -               ^or  "^i  ^ftfiC  '    i^- 

.it-'J-ne    :^'  ':    ■/f^i<vSlA'^\.^  ■-■■  .      o 


'm  IJTJTCTIVT  OF  Tin  l^rjAiTCIi:?.   I.T   I'DUSTIIY. 


tliree  QreoX   life    insiorance  ccnnjiies    in  ITew  Yor':  City  liave  eaclx 
of  tiien  invested  assets   over  two   Iiundred  fifty  nillioiis.      It 
is  hard  for   tlie    lind  to    conprehend  the  neanir^;   of   sucli  a  suai. 
You  can   see  the   inportance   of  very   carefully  selecting;  the   invest- 
ments  of  those  conpaiiies.      All  this   increased  volu-nie   of  money 
which   is   seeking   investment  meajis    increased  prosperity   and 
increased  oivilizationc,      Tha,t   is   the    reason  wl;^'-  ;;ood   investments 
rule   at    such  hifi;h  prices, or  what    is   the   same  thing,    low   rates 
of    interest,    3   l/?.'^  for   example. 

Values   in  Wall  Street   are  rmde  up  of   two   or  three   dif- 
ferent thiiics..      One   of  the  factors   is    the   intrinsic   vsLue   of  the 
property;    another  is   the   sentimental   valve;    third,   the    state   of 
the     arket    in  general,   whether  money   is   availa'ble  for  hori-owin^ 
purposes. 

New  York  City      is   not   yet   the   financial  center  of  the 
world.      Some   of  our  newspapers   are  calling*   attention  to   the   fact 
that    it    is.   Tout   I  hardly  think  we  can  say     that  c      But   certainly    • 
t]iis   country'"     has  taken   on  a  most  marvellous  :;rowth,    not  only  in 
the  way   of  business,   hut    as   a  financial  center,    and  of  course 
New  York   is    the  headquarters   o:';'   tliat.      It  may  "be  that  with  tlie 
growth  of   husiness    in  the  U.S., and  wit'i  the  growth  of  fa.cilities 
whicii  we  now  ls,ck  for   int eniational  hanliing,    we  may  attain  the 
position     \T.iich  London  now  occupies.      Today  London  iia.s    its  branch- 
es  all  over  the  world,    and  when  we   do   our  foreign  hanlcing  we 
do    it   through  London.      The  United  States  has  advanced  so  greatly 
in  industrial  lAO-tters  and  the  future   is   so   "briglit  with  possibili- 
ties,   that  we   ought   never   ^ain  to  lis.ve    such  a  po-nic   as   that   of 
1893.      These   co  fninations ,    if   they   do    not    do   anything    else,    steady 
the  fall  of   pri.ces,    or  they  steady  advances. 


oOo- 


March  19,    1^01 


w:--f  rfv^ 


-l.r;  OV.'JQVO!    B.te!fiB.fi- ka(:Q;f  '^    '"iO 

•'V-;.  1.  ■  .!•  ;e."'  .  ,  iSX-^/;;  r;i 

■ -3ft/ii;.  j-j  v  ■■'.'c:53^ft^e|-fxTfC)^o'?^^-f.  '?o^ofiv;o^orf'^Y?cr^' 


-n-cg6'^o=-  — 


II  TT"!  nj  'C'^i'TT  or  t:t  n^'AiTciER  r:  i  t^ustry. 

L  ^   C   T   U   R  "]      lie 
oOo 


You  reneiTiber  xjc  closed  yesterday       l^y      saying-    tji?,t   tlic 
dai^'er  to   the  Ixvnker  and  i'lvestor  is   inaccurate   or  inadequate 
i;if orrration.        Tiiis  afternoon  I  propose  to   spend  a  s renter    ;art 
of  the  tine    in  talkin.;'j  to  you  aloout    details, and  wliat    is  ueant  by 
inadequate   or    inaccura.te    iiif or.iation. 

The   questionof   accuracy   of    inforination     is   a  iiiost   import- 
ant  one-      Lon(;   e:,rperience  has   taught    tie  banl-cers   that   the 
statement s  of  laanufacturers   and  business  xien  raay  be  uis].eadin,;;i 
frora  the  banker's   point    of   view. 

The  vast     lajority  of  nerchanbs  and    lanixfactursrs   are 
honest.      Eecause   of  years   of  e:c.")erience   I  an  able  to   state  this 
as   .a  fact   of  r.iy  own  ^'aiowled^e.  '  But    it    is    also    fair  to    soy     that 
tliere   is   a.ion,^;  then  a  wide   divergence   of   opinion  as   to  what   con- 
stitutes   profit. 

You  \7ill  hear   it    said  occasionally  that  good  will   is 
water  and  it    should  be  all  sciueezed     out,   but    tliat    is  an  erron- 
eoLis   view.      T'lere    is    a  sense    in  whic"  •.  "tlie    ;ood  v/j.ll   i:3   just  as 
fair  and  honest   an  asset    of  the   com oany  as   the   -olanto      The   dif- 
ference  is  that    it    is  niKjh  harder  to   value.      The  patents, 
trade- oiarv  i ,    the  processes    of  Tiani,ifacture,    th.e.   re;xitation,   the 
uethods   of   distribution,    a].l  these  jo  to  nake  up  vrhat  we      call 
in  one  word  .-i^ood  willo 

Patents  ou;;;ht    not   to  be    sta.ted  in  a  balance    sjieet.      It 
is    i.nossible  for    le   or  o/nybody  to   state    off  hand  what   a  patent 
is  worth.      A  patent    is   woi'th  vciat    it    is  worth  as   earning   power 
to   tlio    person  who   possesses    it »      There   is  no   other  way  of  valuiiig 
it.      Therefore  we   say  that   patent    is   included  in  t!ie   ter.i  good 
wi  11 . 

If  you  will  turn  to  Article   II,    of    tlie  Consolidation 
Azreenent  ,   v^ich  you  have,   you  wiil  notice   it  says:    "TJie  total 
value   of   the  tangible   property   shall  be   paid  for  in  preferred 
stock  in  cases  wnere  the   eamirigs   of  the  conpoiiy  are  at   the    rate 
of  Sf^  per  annum.  "  Further  on  we   find  that    intangible  property 
is   to  be   ^>aid  for  in  coruAon  stock. 

ITow  tangible   property   consists   first   of  all  in     the   land 
and  the  buildings  which  are   upon  that   land;    next,    the   stock 
of   supplies   .and  machinery  tliat   is   on  hand  and  necessary   for  the 
business;    and  the   accounxs   of  customers     should    also  be  considered 
as  tangible  property. 

Now  two   things  must  be  taJcen  into  consideration:   the 
cost   of   the   plant   and  the   earning   pov/er  of   the   industry. 


^m-'io 


f 

Its  ov   \. 


XV.'.  iy 


-DO    rx- 


-no;/;  J.X. 


-'.  J. I       J.'  >■  . 


-ro 


-■.-.x '; 


Olid- 


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tc 


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fiox  ;>j?' 


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II  Tiri  inr.^cTio:;  q-f  T:n  riiTAiTciER  i.t  Iitdusthy.  8 


No^v  unless   the  "tausiness   requires      rtj\   i?ivestnent    in  lands,    vaacli- 
inery      and  the   like   of    a  total   sua  o?  vnoney     to   be    represented 
"by  the  proposed  issue   of  bonds,    coinpetitors  hiay  easilj^     arise 
since  but   little  capital    is    required.      Moreover,    in  case  of  fail- 
ure,   the  bond  holders  ini^ht    find  themselves  with     no   property  to 
foreclose  upon.      That  fact    should  be  taken  into   consideration  by 
investors.      On  the   other  hoad,    if   the   property      is   costly, 
though  the  earnjngs   are   siiisll,    che  bond  holders   in  case   of   dis- 
aster,  mi^ht   find  thev.iselves    in  possession  of  the  plant,   w'.iich 
indeed  noi^ht   he.vr   cost  uore  than  the  bonds,   but  which  vrould 
brin,-;;   ver^'-   lit>:le    in  the  riarket  ^    and  this   is  because  the  buildincs 
and    lachinery  nii  .;;.it  be   often  useless   for  any   other  purpose. 

You  Yj[ill  notice  that   the  i^.rticles   of  A*; re e ae nt    state 
that   the   "plants    sliall  be   appraised     at   their  value  -loday  to   a 
so  in";  concern  for  the  purpose   for  \'7hjch  used,   based  upon  the 
present    cost    of   const  rue  ti  on  <.  " 

The  j^hrase    ":];oin'"i  concern"    is    Important.      It  would  be 
"manifestly  unfair  for     a  corporation   to  be  forced  to   dispose   of 
its    property  at  v;"aat   they  ^'/ould  brinfj   at   a  forced  sale.      Tan.t   is 
not    a  fair  valuation.      T'le    ihrc  ^e   "'join;';  concern"   jneans  t;iat   the 
property   is  to    loe  valued  for   tlie   -Turpose   of  the  business  to  be 
continued  as   a  business. 

In  nmy  case  the   true  appraiser  should  take   i.ito  account 
the   ori;;inal  cost,   wear  and  tear,   and  efficiency   as  raeasured 
by   t]ie   latest    iiiproveinents  ,    as  well  as  by   tlie  a.verace   duration. 
.Efficiency   is   a  ver^'-      serious   word,    oxid  this   is    especially  true 
when  we  come  to  talk  aboilt  nach-inery.      The   efficiency      of  a  buil- 
ding   is  not    so  liuc  1  in  question  as   the   efficiency'-  of  .lachiiiery. 
lTothin{j    is  inore    striking;  to   a  foreii^n  observer   in  i^ioerican  indus- 
trial methods   than  the  willingness  with  which  our  foreaost  Man- 
ufacturers    \7ill  throw  out  uaxjhinery  that    is   apparently  as  good 
as   new,    and   substitute   ot'ier   pieces   of  i-iachinery  which  are  uuch 
more   efficient.      And  when  we   consider  the   value   of  machinery, 
tlxat   fact  must  be  ta.ken   into    consideration. 

T]ie    deprecistion  of  :-iachinery      is   a  pjirase  by  \iiiich  we 
attempt   to    show  wliat   proportion  of  the   original  value   of  the 
machine   has  been  lost  by  use   or  otherwise,      \7hat   tiat   is  ,    or  what 
the   depreciation  on  a  building    should  be  is   different    in  all 
different   kinds   of  business. 

The   question  what  constitutes    profit    is  a  somewhat  com- 
plicated one,    in  which  ceitain  general   eleiaents   enter,  ?und  ^vliere 
the  special  conditions   of   the  business   are    also   iiiportant   factors. 

Tiie  appreciation  of   land  should  be   elii.iinated  from 
such  statements.       laiiy  concerns   establis'.ied  year^  a,;;o   in  th^  then 
suburbs   of   our   laree  cities   find  themselves   now     in   Possession 


,., , — •-.  •  rrw^' -TTnr "  ■•TTT"' 

■«'».. it-./  ■  — —        *    - 

,.9;.'...     ...        BaJ-J*^"-  _  rr,..,t..>:;a+i-tJhl'^"-~9^^^'^-^^-' 


c  ';'■  jr  r.bijea  ^  ■^- 


6i.:.ia:< 


t>jj  1 


•^v---: 


■-      .       '-    ;^         ;.-:-   ..hy^re-D^-;   =-•   n^iicv;  .foci/.    ,i-:Li^iMx.ie^'^oc- 
„,^r  .  f. .^.;.r,_-acx:r  ■ieo!iEd;M:.5.io3-C35?&.'- 31"^  ^ 


II  Tn.'Z  lUl'CTIOil  0?   TT".  rnTAITCI]^^   III   IlTIUSTRYo 


of  cites,    v/.iica  owin-j  to    t?ie  gro\'rt'\  of  those  cities,    are  v/ortli 
more  than  their   orij;in?,l  cost.      Certainly  the   o\7ners   of  the  fac- 
tory are   entitled  to   talce   credit   for  the   appreciation  in  m.^'dLn^' 
up  their  state::ient   for   tie  "banicers,   but   in  what  way?      It   is 
clear  tliat   such   increase   in  tlie  land  is   not  a  iianuf  ac;turin^-  prof  it  o 
It  'Tas  not   earned   in  nanuf acturiiT;   and  coii  not     "be    relied  upon 
for  dividens   in  the  future.      In  £.  fair  statement  tb.erefore   of  the 
profitableness   of  that  business,    this    ite. i  must  be  thrown  out.      But 
on  tlie  other  hand   in   statiic  the   aticunt    of  assets, Lhe   land  should 
be  put   down  cit    its  present  value   and  payment  made  on  t^iat  basis- 

This    Cj_ucstion   is   sometimes   a  troviblesome  one.      a  case 
came  up   recencly   in  whic.i  the   ov/nsrs   of  a  business   stated  that 
they  did  not   v;lsh   ^.ny  depreciation  charged  off   fro  i  their  earn- 
ii\i-s,   because  their  land  had  increased  in  value.      They  were  quite 
ri^ht    f ro -i  their    loint    of  view.      But    if  you  were   asking  at    the 
saine  time     w^ictt   they  had  earned  durip.j  the  year,    tha':   deprecia.- 
tion  vTust  be  taken  care   of. 

This    increase    in  the  value   of   land     comas   up   in  another 
w,:iy  when   it    is    proposed  to    increase  the   stock  of  a  corporation. 
If  there  a  more   assets     tJiey  wor."'d  have  theoretically     a  ri  iht  to 
increase   the  stock  on  tie   ot'ier  side,    but   tme  question  whether 
it    is  .'-^ood    "jolicy   is    aiiother  .aatter, because  if   the  earnings  of 
the  corv^iiy  were  not    increased  it  would  be   foolishness     to    in- 
crease th3  value   of  t'me   stock. 

A  troublesome  matter   in   the  net   earnings   of   a  compaj^y 
is    depreciation.      Hot    only  must   the  plant  be  kept    ixi  i3ood  order 
and    repair,   but   somethinj    should  be    set  aside  for  the    replacement 
of  the  plant.      As  already  stated  the  appraisers   should  consider 
the  efficiency   of  the  machines  a,nd   also    the  possibility   or  prob- 
abiiity  of  a   superceduro   of  the   old  by  the  new. 

I  have  foTJUid  by  e:cperJ.ence  also  that  there  should  be 
taJcen  into  acccant  a  certain  suiie  in  reserve  a^jainst  ba.d  debts, 
which  will  vary  according;   to   tie  cla-ss   of  business. 

I   call   attention  to   a  poinc    in   tie   paper  which  states 
that  all  repairs    shall  be  charged  back  again  in  the   earnings , 
and  then   a  certainpercent    sliall  be  taken.      That   is   one  method 
in  this   case  of   making   all  the  plants   stand  on  a  firm  and  even 
basis , because  as   is  well  known  the   style   of  i.ianagement   of  manu~ 
facturers   differs  greatly. 

There  is   another  tMng     wliic'i  is    troublesone;   the   ques- 
tion of   the  cost   of  managemint,      'r^ieryou  come   to    a  coroor-ation 
of  course  you  pay   a  certain   amount      of   salaries;   but    in  finis   or 
co-partnerships,    it    is   quite   conmon     for   the  partners  to   divide 
the   earnings  without    reference  to    tieir  own  ser"\rices. 


ro  ei- 


:  'ji... 


ou 


^e^iffi 


sLtse- 


IX  ^HTl  FIT^C'IO^'T  0-"   '^zn  Zs'inAHCI^TR   T^.    I'TDUSTRY.  10 


I   su-5pose   I  have  Imd  as  many  tlc;li'~z  alDout   that   as  anytJiing, 
because   in      stati)i;  the   earnii-ics   of   a  cor-po  ration  we   always 
deduct   a  certain  amount   for  salaries,   wliile  two   partners,  if 
they  are  "both  en^^o^ed  in  "business,   wii;^.   say,    no,    that    is   not   fair. 
I   say     it    is , "because     you     imist    reneniber  that   the   exaur  nations 
are  ;iade   for  the   purpose  of    deteminin;;   the  pcssi"bility  of   earn- 
ings for  the   future,    and  of  course  your  co'.ipany    aust   have   its 
nana^eLient  salaries   ciiarged  into    it. 

This    examination   is    important    in  certain  "'cinds    of  bus- 
iness 'TJiere  the    consolidation  is   co.iplicated,    in   order  that    all 
parties    'ny  1:e   put   upon   iji    equality.      And  especially   in  new  cor- 
porations  there    viust  "be   a  careful   esti.iate  of  the    depreciation, 
so   thxc   the   net    eamini;;s  riay  not    in  tlie  first  few  years  "be 
overstated.      A    lew  trolley   railroad  will  supply  an  example   of 
this.      The   equipnent  will  wear  out   and  require    replace:;iGnt 
at    int'^rvals    of    five   to   f ifteerjy eary       How    some  provision   shoiild 
"be    nde  durin-   t'i.ese   first  years  for  tJiis    inevitable   expenditure. 
Othenvise     t'lese  ne\7   replace::ients  would  co.ie  on  all   of   a  sudden 
E.nd  they     would  '^ave   no   ■loney   at   all  to    ctevote   to    then  and  the 
road  would  have  to  .jo   into  banlciuptcyo 

0:i  t'le   ot'ier  hand  a  carefully      located   airface   railwr^'- 
usually     creates   new  trcjffic   which    lay  fairly  be  counted  on  in 
t:ie   future   to   offset   in    a    leasure   these   depreciation  charces. 
I    stated   a  mo  lent   .oco   that  v/hile     nost   majiufacturers 
were  honost  t'ley  did  not   always   Icnow  w'lat   profit  consiited  of. 
Perians    I  :Tay   illustrate  riy    leanin--  by  a  concrete   instance. 
There  was   a  .a.:uiuf acturer  i.i  Ohio   whose    .ilcuit   was  worth   *500,000o 
■jid  in  order  to   escape  taxation  he  wrote   dowr.  the   plant   to 
1250,000.,    />Jid  he   too"':     fro.i  that    side   of  the   account    ')250,000. 
and  c] large d   it   to   Profit   and  Loss   account.  Profit   and  Loss 

account  lias   two     leanin^s.      One   is    that    it    s]iov;s     the   assu..ied 
or   estiviated  excess   of   the  value   of   th-^  assets  hs3c  over  the 
liabilities.      But    there    is    another  sense   in  which  a  profit    and 
loss   or  surplus   account   represents   t'le   earnii-^s   of   the   coripoiiy 
over  ^nd   above  wl.iat   loas  been  paid  out    in   'dividends ; and  that    is 
the   true  way   of  "'ceepinj   .a  profit   and   loss    account,      ■\i7hat    t-iis     lan 
did  was   to   take     p250,000.    out   of   tJie   plant   on  one    side  and  put 
it  with  profit    and  loss   on  the   other.      In  tnal-cinc;   the   stateiaent 
of  his    iroperty  to   the  inen  who  were   to    do    the   co.ibinin;^    in  Hew 
York  City  he    stated  his    profits  were   '^500,000.    a  year.      It  was 
reported  afterwards  t'n.at   h.is   profits  were   •■)250,000.      He  had  added 
to  his   profits  what   he  liad  taken  fro-i  t'le   plant   for   taxation 
purposes,   vriich  was   rank  nonsense.      There   is   an  actual  instance 


.     .  .1.  •        ■         '  ''       V'.ipl  '     i- 


X 


SJL     evA:     ,TS;ji,.        ■.--■■..  ■  "  •       ■-.'         .      9[:J,   ^    ■ 


■\r  c- 


ft.    .,        :     ■  ■    ^      -'       -' 


OX' JjS.t  ■- 

.^'  J_  J"  i'^  ji„ 


ill  .J.     0,ci  t'l 


:.^i-'J       -.iJ  .-.f  °.v  .^-^*^         •  -  n  r  T  r  r  r  i-f  ■■    1    ; 


t  t<5  ^  ;oQ(;^.  v^^  ^..  -^  ^  -  V     -T 


'^/■^."'- :n 


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1-C  ,^:^'^:       .;_  ;.;oSnor-     •:  .•  -.V  .'-i.T'    ,:..--  -c;-i.JC 


i...,:?-f" -J^^     ■     ■  th  tiiTrex'"^       .;_  iioarion  •■■  ---!-■  ^     t-      ">;yTfcT 


II  Tin  fhictioj  or  T:r,  piil'^tgier  i..t  i.u^ustry.  ii 


of   a  perfectly  3trai3iitf  onvard    run  who   clai  led  Iiis    orof  its  were 
tv/ice  w'lat  tliey   really  were. 

There   is    ?jaother  thi:-!-;   we  'i<\ye   tc    looh  out    for,    ..md 
that    is   the    stateiiient    of   avera^jes.      As  you  know,  the  business    of 
the  country  ]ias  "been  ver;;,'-    -irosperous  for  the   last   t'lree  years i 
but   before  f.-iat   t  i  le  iianufacturers   had  a  ]ia.rd  season   of   it. 
There   is    another  curious   fact   in  connection  vfith  fjj.s„   The   finan- 
ci  ',1    ;)"uaic    as  you  kno^v  jia'Toejied     durin;;   the   suriier  and  fall  of 
1893;    values   fell   in  '.7\11  Sti'eet   and  xhe   people  wio  had  aiiytiiin:; 
to   do  wit'i  stcchs   and  '^onds  were   in  a  'lard  tiu?^      I  hijow  fro  i 
ny   own  exoerien:^   fiat    the     lanufacturers   of   t'lis    country    speak- 
i-Tfj   c^ene rainy   did  not  feel   the   effects   of  th-^.t    p.atiic   until 
two  years   afterward.      Their  hard  ti  les  becj;an  in  1895,    and  in  t:io 
latter  part    of   1897   their  eaniin(";s  be;;;aa  to   i2iprove;in  1898 
t'aey  Iiad   a  fairly     :;;ood  year;    and   in  1899   a  boom  year. 

ITow  you  ivill   see     that    in  esti  latlni^,'    O'^  these   t'lings 
if  we   should  ta^ke.  the    last  two  years   and  iialce  a   statement  of    the 
profits    of   tliese   .lanufacturers   it  would  be   coi-rect    :^nd  at    the 
saiiie  tii-ie  ais leading.      If  we    s].iould  capitalize  a  company  on  tJie 
eami]%*s   of   the   last   two   years,    an  iron  conpany  particularly, 
and  there   should  jo:ie   anotier  ":x;.rd  tiiie   in  Ai.ierica  two  or  three 
years  fron  now,    we  iiiijht    lose   our  whole   investment. 

T lierefo  re  the  t'lin^;   to  do    is   to  rmka   a   statement   showli 
what   the   prifts  were    in  good  years   and  w]iat    in  bad  years.      Then     . 
if  the   profits  ia  bad  years  were   enoi;!£jh  to    support   the  pief erred 
stock  and   in  CiOOd  years   to   iDay   dividend  on  the   preferred  stock, 
then  we  can  say     to    ourselves  thot    our   investnient    is    reasonably 
safe.      That    is  wliat    financial  oeople   are  stri\/"ir>r;   to   do. 

I  want    to    '5ay     to   you  that   there    is    no    science    of  book- 
keeriin:^.      Book-kee^i;.i;''-    is   cm  art, the  art   of    outtiiT;    down  facts, 
-■■here   is   no   ;.ia'"ic    about    it.      T"ne  thin;    for  us   to    do    as  business 
men   is    to    sec  what  t!'ie   facts   are,   and  after  tliat    it   is   a  conpara- 
tively   si"  role   '.latter  to    express  the;.i  in  figures.      The  worst    set 
of  books    i   ever   saw  were  perfectly  correct,    but    fney   were   very 
rnisleadinr; . 

Another  fain:;    is  the   natter  of    inventory.      I   suppose 
yoi:      know  t'lat    every  -lanufacturer   or   tradinj  concern  at    least 
once  a  year  most  take   an  account    of  t:ie   amount   of    articles   on 
hand,    njid  they  put    on  thea  a  certain   set   of  prices,    and  that   is 
taken   into    their   accounts.      There   is    only      cne  vra;/   in  wliich  a 
uanufacturer  can  make  money   and  that    is  by     the    sale    of  his   :;oods<. 
Now   if   durinfj   "Qie  year  he  has  boi;i<:;;ht    a   large   quantity  of  material 
more   than  he   has  been  able   to    turn   into    ;;oods   and  sell, it    is 


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II  T.":^  ru-^CTio''  o:^  :."r;  FiiiAiiciER  i.i  i  idustry. 


evident  t'^at  vxnless  "xe  talces   fiat   ract    into   consicleration  his 
earniiTcs   co^i   not   be  correctly   stated.      This    is   a     verj'-   sirple 
Matter  aT^are  itly,   but   there  are    sone  very  /^rave   issues 
involved. 

If  you  will  bear   in  (•.lind  t:ie    statement   I  iLiade    a  no. lent 
a;";o  that    -irofits    Tust   coae   fro.i  ..i-onuf acturirig  ,   you  will   see   that 
it   is   in  a  booh-l-ceepi:^   sense  perhaps   perfectly   ri:j;ht    ,but    in 
a  connercial   sense  wron^   to  make   the   inventory     include   t?Jose 
profits,    because   this   inventory     is  narely   an  adjustuent   and 
is  JTO±  to   find  ou''-   what   the  selling;   profits  were. 

If  you     bea.r  that    in  nind  you  will  see   the  point  when 
I   say  to  you  that   tnere   is   a  controversey  soinc   on  all  the  tine 
in   re/^ard  to   that    inventory,  s      Sone   of    our  steel  companies   perhrps 
durin :  t]ie  year  1899   or   1900      found  tlieiaselves   in  tht   possession 
of  :iateri^l  on  hand  which  had  incrc  ised  3t   least   50f^  over  tJieir 
cost   price.      How  how  should  that  be  ta^.^en  in  the   inventory?     They 
said,    l3t  us   put   it    in   at   i50;t  instead  of  lOO.'f.      That   seems  on  thv^ 
face   of   it     very  fair, but  the   difficulty  is   that  the  no.ient  you 
do  that,   you     increase  their  profits   during-   the  year  by  just   that 
50^^^.      There   is   a  dispute   about    'hat.      ISy  opinion  is  that    it   is 
a  dangerous  way  of   doin^-  business. 

On  the   other  hand  let  us   come   down  to  the   present  ti:ue, 
with  a  fallinc:  i.iarket.      You  Icnovr  a  gradual  and  steady  fall  in  the 
market    prices  tescs     the  virtue   of  the  inanoger  of  a  tradiiTC   or 
manuf  act  luring   co^-ipany  very  much.  •    It    is    easy   enoxjgh  to   aake  money 
on  a  risii^C   i-"^arket.      But   on  a  fallint;  roarket   it    is   a  different 
thiiig.      You  have  got   to   keep  your  factory  (zolriQ   and  you  uust  have 
these   supplies, and  you  have  go't   to   keep  buyii^;,    "but  every  tiue  you 
buy  you  lose  money.      At  what  price  will  they  take   inventory? 
They   say,    take   in  in  at  what    it    cost  us.      It   is  better  to   tako   it 
in  at  wliat   the   cost   price   is      at  that    tjne.      If  you  do  not   do   that 
you   are   simply  holdir^-   up  a  certain   ai.nount   uf   profits  which  really 
should  be   taken  because  when  this   uaterial  coraes   to  be  i.iade  up 
into     manufactured  goods   and  sold  you  will  l}ave  a  very   low  profit. 
So  the  best    rtile  about   that    is  that   the  material  should  be   taken 
into  your  accounts  at      the  co.-it  price  or  at   the  market    ^rice, 
whichever  is    lower, and  then  you  will   leave  the  manuf acturin-^ 
clear. 

There   is   another  point   about   thato      in  certain   lines  of 
trade  they  manufacture   on  future   orders     I'or   exauple ,    in  the 
knitting  goods    industry,      they  begin   orders    during   the  winter 
for  delivery     the  next   fall.      They  ahave   quite   a  number  of  suits  of 
underwear  made  up  and  they  are   in  the  liabit   of   tsLking   this    into 
their  accounts   at  the     prices   these   people  have   agreed  to    psy 
next   fallo      They   should  put    it    down  at    the   cost   of  manufacture. 

oOo March     10,1901 


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Ill  thh;  hjitctio:t  or  Tin  fiitaitcier  in  inDUSTnY-.  13 

L  ^   C   T  U   R  ]J]      IIIo 
— oOo 


\7e   did  not   quite  finish  yesterday     on  one   or  tv;o  points. 
On  the   question  of    ijiventory   I   cm  not    sure   that   I  made   .lyself 
plain  to  you,    in  sayin,"   that   a     corporation  or  laerchant   should 
take      inventory   at   nrices  v/Iiich.  are   cl.theB  cost    or  '.larket,    which- 
ever is   lo\7er  oi    the  t\,vo.      I  want  to  sc\y  to  you  that  that   is  the 
conservative   prnctlce;  Tout    also    it    is  fair  to   say     tliat   the  .:ian~ 
ufacturers   ond  iMercharrts  themselves   do   not   all  c^-ree  with  that 
view. 

ITow  In  1  e:^;ard  to   depreciation.      You  reiae  iher   in  ner- 
cantile   affair.-j   I  told  you        tha"G    in  i;Tachinery  and  t:ie  like   of  tliat 
we    :Tust   have  the  loest   expert   1-cnowledgo  we  can  get.      We  are  obliged 
to   charge   against  the  profits   a  certain  proportion,    on  the  ground 
that   the  efficiency  or  possibility  of   a  new  invention  nay   decrease, 
th^e   life  of  that     iiaciiine ,    say  ten  years.      We  would  then  have 
one  tanth  of  the  value  of   that  uaciiine   to   charge  off  every  year, 
if   the   estate  has  a   reserve   furdo 

It  must  he  Iciow  to  you  gentleuen   tnat   are   interested 
in  transportation  tliat   that    is  not   tlie  way  the   railroads  rmnage 
their  affairs.      The   railros,ds  liave  been  running  for   so  .lany  years 
that    it  has  becoia©  almost   an  ax.ioia  with  tliem  tliat    a  certain  amount 
of   replacement  imist  be  .oa.de   every  year,   and  any  changes   t]iat   they 
put    in  are  practicall3^   the   same  thing    as  we  were  talking    about   a 
moment   ago    in  'lercantile   affairs   in  putting    at   one    side   something 
to    replace  .lachinery.      Eeverthel.ess    it    is  my   private   opinion 
that    it   would  be  better   if  the   ruilroa.ds  would  all   of   them  make 
an  exact   study   of   their  whole     physical  plant   and  find  out  t}ie 
life  approxijiately  of   all  ties,    rails,   bridges,    etc.    and  then  maJce 
a  calculation  a,s   to    the   averaige   amount   tha.t  would  be    required 
year  by     year,    to   be  put  aside  to    replace   tnem.      This   amount    is 
char^'ed  into    the   expense  accounts   But   remember  that  the   charging 
of  that    into   xhe   incoie   account    does   not  mean  that    they  have   spent 
it,    as  they  liave   exactly  the   sane  thiir;.      It    is   only     a  question 
of  clearness   in  stating   the   condition  of   the  business.      You  know 
that    it'  is  the   practice   of   every  railroad  company  just    the  moment 
hard  times  come  upon  them  to    stop   replaci}'ig      cars,    tracks,    etc., 
and  then  vAien  t]iey  get   to  a  year   of   prosperity  they     put  more  than 
they   ought  to    in   repairs. 


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Ill  Tin  RriTCTio:T  of  r:n!  fiitaiicier  iit  i.tdustrYo  14 


I   a:..!  asked  to   explain  tlie   essential  difference  between 
bonds    and  stocks.      A  bond  holder   is   a  creditor   of   t"'\e   corar>anyo 
Ee  Jias    loaned  tlie  coupany  :ioney  at   a  fixed    rate,    and  lie  lias  not. line 
to   do  \vit:i  tlie    success   of   it    eiccept   so  far  as   it  may    relate  to   t'le 
safety  of  t'le   investment .      He  wisaes   to  be  sure  that   liis    invest- 
ment   is    safe.      Therefore  the  bonds   tJic-it  are   sold   in   the   street 
are  usua,lly      issued  to  about   50'o  or  one  half   of    the  value   of 
the  plant.      In   some   states   it    is  absolutely     illegal  to  bond 
then  for   t-aiisible    assets   such  as  accounts    receivable,   but  whether 
it    is   absoluboJy   ••.llegal   or   not  ^    j.t   is  vjorthiess  because   they      are 
not    propei-i:y     tliat  you  c\n  foreclose  upon. 

On  the   other  'umd  the   cwrjsr  of   tlie   stock  of    the  co.irjany 
is    a  pertner   in   the   enterprise.      He    is   to   participate   in  the 
profits   or   losses. 

Preferred  stock   is   an  atten-'pt  to  nake  you  a  partner  in 
the   enterprise  bvt   n,t    the    sens  tLie  to   secure  yo-o.  to   a  certain 
extent;    so   that    preferred  stock  can  be  riade  to  cover  a  larger 
a^iouiit    of   assets  than     bonds.         It    is    linoited  to  la  certain  ^jercent - 
a^e  but    it    is  cunalative,   .and  if   they   do  not    pay  you  one  year  they 
must  the  next    if   they  e-arn   it.      Preferred   stock  /^ives  you  no      such 
remedy      as  the  bond  holder  in  allovvin;:;  you  to   f  o  reclose,but    it 
has   a  cu.uxlative   remedy   and  tliat    is   all. 

In   the  Royal  Baking;   i'owder  Company  they  have   a  plan 
vT-hich   is   very   successful.      They  wanted  some  -foikinc  capital   so 
they  sold  preferred  stock.      Now  that   preferred  stock  has   ^'■^  vot  iix; 
power   in  this   case.      It   is   simply     a  premise  to    pay      6^  on  the 
preferred   stock jand  as    lone   Q-s     tiiose    Payments  continue  you  have 
notiiinc   to   do  with  it,   but   the  moment      they   do   not   pny  the   preferred 
stock,   the   preferred  stock  ]iavs   a  right  to   call  directors  tccether 
and   run  the   company.      That    is   a  very  good  way     to   furnish  addition- 
al capital  for  a  business.      It  mak^s   the  preferred  stock  perfectly 
secure,    so   far  as   any  stock  canbe   secure    .  : 

Turning  now  to   the  Articles   of  Coiisoli  datioa  which  you 
have,   you     will  notice    it   says   that,    after  statinj  how  the  earriiings 
shoudid  be    ascertained:      ''the  balance   of  the   said  avere.ge  annual 
earnings   so  a.scertained, shall  be   deemed  for  the   purpose  of   this 
agreement  the   net   profits   of  tlie   respective  vendors   to  be    severally 
multiplied  by   lOo"      T]ie   effect   of   multiplying   the  net   earnings 
of  this   company  by   10   is   to    capitalize    it   at   a   rate  which  on  the 
face  of   the  figures  will  givo   10^, 

Now   it   says :  "provided,    however,    tliat    in  case   it    shall  be 
found  tliat   the   aforesaid  multiplier   of    10  will  produce   a  grand 
igjregate   of    cor.rnon  stccJc  greater   in  amount  than  the   grand  aggre- 
gate  of   preferred   stock,    the  Sxecxitive  Coimittee   shall  choose 


.^ 


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Ill  Tim  KriTCTIOlI  OF  THE  PnTAllCIIilR   III   I-DUSTRYo  15 


such  lov/er  •nultiplier  as  v;ill   li:-ut    the  '^rand  a^r^-recate   of  co-iion 
atoc'c  as  closely  as  ;Ta,y  be   to  the  ^i^and  aggregate   of  -preferred 
stoclc" 

It   is   one    of  the    rules    in  V/all  Street   that   as   far  as 
possible   a  Corapany     should  be   capitalized  at   very  nearjiy   th-;   sane 
amount   of  preferred  as   comon  stock.  It   is   considef-uble   of  an 

advaiitage.        It    is    found  that  Vae   preferred   stock-holders 
if  th^  find  t^i^.'t  the   conpany     is  going   to  bo    oxceediiig  ly   prosper- 
ous  and  that   cocEion  stock  is  the  thii'^   to   hold,   they  v^ill   sell 
the   preferred  en  the   street   end  buy   covmon,   and  then  so;.ieone   on 
the   street  who   kncTO  what    is  colrr:    on  will  get  hold  of  the  prefer- 
red stock  and  will   run  tlie  whole  thing.      On  tlie  other  hand   if  they 
find  the   corroany  13  not   •■•;oi  ig  to  he   so   prosperous  they  will   sell 
the   conion  -^jid  tal<B   preferred, and  somebody  on  the   street  will  bu}'- 
the   corrion.      The  way  to   get   out   of  that    is   to  liave   two  kindij   of 
stock  as   nearly   alike   as   possible. 

la  ivia^kiir;   uo  these  new  earnings   also  j    for   this   pur-jOse, 
the   amount   of  the    ruiageinent  expenses,    salaries  j    etc    ,    all   shoulc. 
be  stated  separately,   because  that   fonas   a  very  fair  co  iparisoii 
later  with  ivhat  the  new  conpaiiy  will  have  to   pa;/-     3,nd  it    is  easy 
to  fi;;ure  out  v;hat   savirc  there  will  be   in  that    direction. 
In   the  same  way  all  these  things   are   subject   to     a  certain  amount 
of   adjustment. 

Let  us  take  the  case  of  the   promoter.      He  has  his   options 
generally.      An  option  is   an  agreement    statii-^   that  ABC  will  sell 
out   to  me  at   "I^SOOjOOOo    cash   provided  that      the   agreement    is   closed 
within  a  certain  time.      After  you  liave  tiiese   propositions   in  your 
hands,    the   promoter  goes   to  a  banlcing   co.ipany   and  asks  them  to    ad- 
vance money,    and  it    costs  thoupands   of  dollars.      But    if  he  can  not 
get  any  money  fro  a  the  banking   coinpany     he  has   to   jo   and   ask  these 
people   if   they     will  not      set   apai't   a  certain  part   of   their  earn- 
ings   so   as   to  give  li±a  a  fund  for  the  purpose. 

The  first  thir^'  he   discovers   is   that  tliese   investigations 
of   profits    -uicl  appraisals  completely  knock  out      the  statement    of 
what      eac]i    .lan   is   vrorth.      Of  course   c.  merchant   is  not   joing   to   put 
.close   figures   on  a  thin^   of  tliat   sort.      Therefore   it   has  come   to 
be  a   story  in  ViTall  Street  and  cai  option  is   after  all  only  the  be- 
ginniii :   of  a  series   of  negotiations 

ITow  begins   the   troubles   of  the  promotero      He  must   go   to 
•ILVo    A  and  s?ys,"Iro    A  you  liave  got   this   down  for    ySOOjOOOe      ''/jiat 
do  you  mean?     You  told  me  your    real  estate  was  wortli   3l00,000o 
and  I   find  by   the   ap-iraisal  it    is   only  worth  50,000=      He    says, 
It    is  worth  that   to  me.      That   is  not  t]ae  waj"-  to    talk.    That  ma.-iias 
innocently  misled  fme   promoter  so  that   his  schemes   are   all 
throvm  out.     .Finally  he  get  his    down  to   a  place  w?iere  he    says  he 


STj^VfXV.bj^' 


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Ill  T:373  IU"JCTIj'."  0?  Tin  PrJAlJCKR  liT   I.IDUSTRY.  16 


vrill  accG"3t   r^  certain    "unount   oi     orof erred  .aiid  corn.on  stoc^.c. 

lie  ^-oes   to   a  inoji   in  tlie  next   state,   v/iio   says,  I   do  not 
knov;  wliet]ier  I  want   to  jo    into  this.      .,]y  "business   is    f  lourisaiix; ; 
v/liy   should  I   'j;o   into   the   co  ibination.      He  ueets  witli  these  cases 
v/here   'ig  ;nu3t    -prac  tic  ally     pro  lise  the  Presidency  of   the   coip.?Jiy 
to   th\t     lan  'oefore  .he  will  ::o   in.      Another  loan   is   a  leader  in 
trade.      lie   '\as  "been  hef o  re  Congress,   he   is   kno^'^n  as  Colonel  Snith; 
everyhod;^/-  knows  hiin.     You     will  find  his  lousiness    ife   not  worth 
as  nu.ch  as   a    avn  in  the  next    state      livine;   very  quietly  and  atton  d- 
ing   to  his   husio.sss;   hut   at  the    sane  ti^ie  his  position  oef  o  re  the 
cou^itry   is    such  that    it   must  be    regarded.      You  can  not  Cjive  that 
raan   a  strict    oro   rc*,ta  share   on  the  hasig   of  wliat    his   ecirniac^s    are. 
These  adjustiients     riiust   take    place  before  the  GO?abination  can  be 
fonaed. 

Sovneti-ies  these  people  will  not  speak  to    each  other. 
I  Jiave  knavn  cases  wl.iere   if    a  '.lan  found  out   hir    conoetitor  was 
valued  dX    ■p50,000o   more  than  he  wag  lie  would  break  the  w:Jole 
combination.      The   promoter-  must    face  these   questions « 

A  combination  that    is  worth  anythirg   at  all   is   capable 
of   great   developmait.      The  muic.jenent    salaries   can  be  greatly 
reduced.      And  where  the   companies    are   corapetinj  witi  each  other, 
of   course  each  has   a  branch  office   in  the   same  place,    and  those 
expenses  can  be   reduced.      Suppose  we  find  that  t:iis   theory      calls 
for    ')100,000.    preferred   stock  and  ''tlOOjOOO.   cor.inon  stock.    But    a 
calculation   is   made  .and     you  fj.nd  that  with  the  additional  earn- 
ings fair]^'-   esti;aated     it   will  warrant  a  capitalization  of 
'i?200,000.      Then  onehalf   of  the   increase  is   set    aside  to    furnish 
working    capital  and  the    rest   of   it    pays   expenses  and  :;^;ives   tJie 
^oromoter  and  b 'linker  their  profit.      That    is,    in  a   rou-jh  and   ready 
w.Ty,    the  way  tliese  thing's  are    lanaged. 

So   they   capitalize  that   company  at   ^100,000.    preferred 
and   ■;)l00,000o    cc:"-r.ion,    a.nd  'jive  to   each     individual  his  proportion; 
and  then  sell  to   the  public. 

These   comp.anies  must  have  working   capital.      Kcperience 
sliows   t'.iat   these  great   concerns  liave  not  had  money      enougji. 
You  "mve    jot   to  liayo  a  very  considerable   sum  of  money   for  material 
v/hici  you  :Tust   purchase.      You  ought   to   lxi,ve  v;orkin-;  capital  enou.ga 
to   discount   your  bills.      Another  t:iinj  you  vrant  wo  rMng  capital  for 
is   to   carry      accounts   for  your  cu&to:-iers.      In  trade   thirty  days 
is  considered,  cash.;   but    trades  vary      as   to   payment  from  thirty 
days   to    two  years.      Tjiere   is   no    rule    as  to   the   atno-unt    of  working 
capital;    it   r.Tust  be  figured   out    in   each  individual  case,    depend- 
in,g   o.n  tJie   nature   of   the  business. 


^,..„^^®fI|;!rx.^iH'et^tff--'^^s''9:^^^'^-^  ^soixi  .   .^ ,' :,^oo*;|9a*  ^fe;&«^fi'^^e:>sj3-- 
■■     •■■    ■i:o-frof5'i:?«*:^r-^'    ^    '^            ■;      ;y|^^V^^^l^V^,i,f •:.~.0«e9S^^^- 


Ill  Tin  ruiTCTio'j  or  T:n  pi'TAiici-"]H  it  i'idustrYo  17 


A  ci^eat   dea,l   of  nov.ey   in   the   treasury   is   aLnost    as   dan- 
gerous   in  a   corporation  as    it    is   for    the  UeSoGovenment.      ITow 
if   tiie^'-  do  not    do   that   t^iey  have  £:ot   to  "borrow.      Borrov/iii: 
raay  be   a  very  serious  "business.      Heretofore   the   slio.11  merchant 
went   to   tiie   local  bank  and  r:ot   it  o      Rit   when     he  rjoes   into   the 
CO  ihination  t;ie  conditions   are  entirely  charged, and  it   106001.163 
a  serious    question  as 'to   just  viliat   credit     he   ou^ht   to   have. 
So    it    is   not    easy     always   for  corpcrstions   to   borrow  large   suins 
of   ,10". ley. 

Tb.ere   ere  certain  trades  where  that    question   is   a  very 
serious    onQo      Iri   the   Linseed  Oil  Co-,    for   exainpJ.e ,    it   is   a  very 
difficult     jroblein  to   Icnow  whether  they   ought    or   ought   not   to  buy 
ver^r   lp,rge   qu3ntlties   of  fla:cseecl.      It    requires   great   judgment, 
o.nd   it    is   the   easiest  thing    in   the  world     to   inake   a  Mistake   in 
mercantile   ..latters   so    that    it   means  2d2  o,  loss  of   thousands   of 
dollars   to  you  if  you  get   on  t]ie     wrong    side   of  the  ;iiarket. 
All  these   things    sho'w  how  .important    is   the   question  of   working 
ca'.oital. 

On  of   t,]ie   things  the  ";)romoter  has   +o   do   in  tJie  nemi- 
time    is   this:      He  has  taken   an  option  froa  the   different  concerns 
to   paj-^  them  cash,    but   he   knov/s   tliat   that    is    out    of  the   question. 
He   only  does  that  to  get   a  start.      He  can  not   pay  them  cash  because 
nobody     will  buy   for  cash.      So   if  tlie   property   is  worth   '?100,000o 
of   preferred  and  comiiion  he  has  agreed  with  tbem  that  they   shill 
take    )75,000.    in  stocks  and  he  will  give  t -le  .1  cash  for   the 
difference.    T]iat   cash  he  must   pay  and  he  must   collect  money     for 
world. n     capital,   because   every     one   of   the   fin.as   is    indebted  to 
tlie  b.ankers.      So   he  goes  to   a  banker  and  soys,    we  will    sell   the 
preferred  for  par.       "hey  get   up  an  underwrit ii"^    syndicate   in  v/hich 
all  the  various   facts   are   stated,    and     the   subscribers   agree  to 
underwrite      it.      The  underwrit iiTg    syndicate   is   usually  paid  lOfj' 
'^he   agreement    is   faat   the  underwriting    syndicate  will  toJce  that 
stock   if  nobociy  else   does,   and  t]aey  get   10/^  in  any  case.      It  is 
offered  the.i  for   'xiblic    subscription,    and  that    secures    the   success 
of  the   company.      It   often  happens,    hov/ever  that    tlie  underwriter  is 
caug]it;    t]iat    is  to   sn^r  ,   the   public    does   not    subscribe.      The  public 
after  all   is   the  main   reliance.      This   u'all  Street   arrangement   is 
only      to  keep  the     lachinery  going  by  whicii  you  and  I    in  different 
places  buy   a  few  shares   of   stock.      It    is  bad  for    tlie  company  to   \isM. 
liave    a  lot    of   stock  in  the  hands    of  undervTriters  >    because  the 
mo  lent  they  get   a  chance  they     will  sell  it. 

oOo 

March  20,    1901 


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IV  Tllfi  PUITCTION  OF  THE]  FlilAlICr^R   IJ   IllDUSTRY.         1.8 

LECTURE        IVo 
. cOo 


T'lere  are   one   or  tivo   special     subjects   I  -yish 
to   direct  your  attention  to    in  this   lecture. 

In  the  first   place,    I  ni.i^jlit    say     to  you     tliat  the   ri-jlits 
of  i.iinority  stocl-:  holders   are  'beconiiix:  more   anctiore  protected 
"by  the  courts   in  their  dScisions,      The   tendency  of  the  oourjjs   is 
entirely  toward  the   side   of  tlie  ru-nority     stool:  holder  and  he    is 
not   slow  to   take  advantage  of   it.      In  fact,    in  the   opinion  of 
so  ae   ';^ood  corpora^tion  lawyers    in  llev/  York  City,    the   coui'ts   are 
,';;oin-^   to   an  extreme    in  t:iat   :iatter.  It    is   one  of   the  2;  ■■■-Li.t 

drawbacks  to  carrying   on  scne   of  t'lese   consolidation  soiiemes. 
In  t]ie   case   of  the  :ionou  Railway  they  had  a  reoirs^.ni^'.ation  about. 
three  years   a^o,    and  for  purposes   of  their    own  sone   people   under- 
took to  upset    it.      They  proved  that  the  bond  holders  and  stock- 
holders had  a.:: reed  and  the   courts  threw  it    out   on  the  ground 
it   would  look  very  rauch   like   a  conspiracy  canonii    'tlio   creditors. 
That    is   pretty  f:vr  fetched,   but    it    sho\i/S      the   disposition  of  the 
courts   to   protect  ::iinority  stock  ]iolders.      \71iere   a  coapany  gets 
control  of   another  co.:^pany  by     possession  of   a  majority   of   its 
stock, and  then  it    proceeds  for  purposes  of   its   own  to  use  that 
other  company  in  a  way  which  will     greatly  benefit   company  number 
one,   the  minority  stock-holder  will  s&y  iiis    riglits  are  beir>g    in- 
fringed and  will  apply  to  the  courts   for  5,  receiver.      I  ]iave  ]momi 
several  cases   like  that» 

Another  thing    in  regard   to   profits,    which  has  happened 
several  times    in  iiiy   e:cperience.      V/here  there   is   a  tax  on  the 
profits   of    corporations,    a  conipanjr  that    is   owned  by  two   or  three 
people,   when  they  get   tov/ard  the   end  of  their  fiscal  year,   they 
will   size  up  pretty   closely  v/hat  their  profits  are  going  to  be, 
and  they  will  pay  this   as   salaries      to   -themselves;   and  then  they 
report   to    the   tax  collector  tliey  liave  made   no   profits,   which   is 
technically      correct  o 

Now  the   other  extreme   of  that    is  the  partnership  where 
they   pay  no   salaries,   where   in  Lio.lcir^^   a  calculation  of   their 
profits  you  are   obliged  to    charge   against  those   profits   the 
salaries   of   the   partners.. 

One  word  also    on  industrial  bonds.      Of  course   as  you 
can  very  well  understand   industrial  bonds    do   not  stand  in  the 
eyes   of  V/all  Street   as  high  as  Railway  bonds,    and   it    is  hardly  to 
be    er^ected.      But  those  who   Iiave   the;a  to    sell  try  to  get    around 
that  by  puttii^j   unusual  provisions   in  those  bonds.      For  example, 


'ro  -^yx  oKU'i  i. 


,3i.c/j03l   3.£xl.-!  f ■ ':    cj"  iiO.cc^nechjr.  •ij;;o\^  .roeilb   oJ 
•De.' .f^d'Cic;    .■  co:  ;Z.'::j:,   91  olx  :^nJ:r:Coea   O'rj^^   iii'iar'Iorl  :rood"a  x&i-ionh.i  I0 

noxi'iqo  exIJ-  rrJ"    {.toj-ji  rl      -  .t.r   "io  eyod'n^-ivA")-':  s^f^J"   oi  v;oI 
■.  ^.o   ::: '  ^  TOO   eti-.j    ,v;JxO  ::^?"i oY  iv3k'  i;X    diSMx^cE  /:; .:  J-/'^  oc"^  oo  L.-o;'    0^  :■- 
•■■.■.:'-  . ..    iiL*"   'to  91-0   Gx   .jT  .i.a.J-.tr.r     ici'.i  i-.i.   eos'i&xe  nr  ot   ••f'xo;-- 
■ -i:-);  r,. ''OS   r:bx..tvC;J>.i:Ioax:oo   syari"  lo   9:-.08  r.o   sruvt-ixso  0.+  e^foi^cvi'i!-]-!" 

J  ^>  [7  rj   a/'.^otq  9r'C>e  a'Nv  yJiedif  I0  gyaorixi'';  "xol  bcij-    (Oj^   sixjey,  oa'j'';} 

■•■I'oo.te   -brxo  sie/aoxl  bi.cc''  sild"  d-xix'j  I>9voir  Y''^—      '-^-J^    d-sac;;.'  oc)-  ^^oc:' 

-bxi.'jcTii:  9il.+  no   jj:j-G   &t  v/eixfJ"  botxtoo  ead'  xjiix-  heeiYi-  bsMl  o-rstloxl 

,a"i  OoiL'Si :;   o/lj   ;-.o'of!t;,-;  vv^yti-rjeiioo  e  6"^\cl  .fLox-'XT  -f^av  :-ooI   f>ruow   ;t.c 

e.:'j-  'ro  /;ci:MEoq;ax;:   :v;;[r  jx    yj:;/    , XJ3x'c,r- •'.  :^::'i  x^&e'iq    f'i:    ti^^tlT 

.':.;i:   lo  Ytf:"!:ot"i::  -?    -o  r:oJ:5S©?:aor      '^tf  ^y.'-^f.oo  -^fjrrcJ-ofiiJ  ^o  -:•'  .tnoo 

c;";i'd"  si^if  Ou"  ii^/o  <:^^s.  'to  eesorpi/q  loi   :-jJi)e':>oo-iq    :'i   neild'  ifnr:,;- • 'j+b 

-oJi^rrin   v;aeqrioo   oXJiu.ou   yC^'ASjio     IIXw  rlo  ai!??  y.      ;:  lux  -^n/^r.  00  itxTto 

■ni    ■^^i.f.QZi  &t£  e-:K';ijjii   aixl   v^->a  lJ.i7i-  •lel.r.ori-ifoo.!.:;    .rJJ-xonx  ;    :X'r    ,ano 

::.:■'    r'  :  i:  I        ■     v--  ;    ■     -     ■     '"    -r  -.ii;;    o:{-  -i^q!-:/-   iliv.    :  .-/^    bsj-i-jl 

.  d".sxl.t  a-'i:.f.   seaBo  X^Tevea 
.' 3  rxec/.-fisri  c:-sx-   (.;.oxx''.y   ,c;;ii?coir   0*  bin'o^e^'i.  nx    Tjiirl-t  i:ec£too_'. 

sxlj-   i:o  jc-j-  .r?   ai.   eiv^-'j  oiexa'      .eanelTeqrca   -^pr  r^x    28i..xj   l-::-x9  /6& 

69-ii-t  *to  cv/d'  \,d  xiexiv/o  ai   J-xr-xId"  "\Gf Xf5'x::.c o  jr.    ,  SifoxT^iofico   'j-o   acfr'lo'fq 

-•.•:-3.'.Id-   (i^ev;  ii:!o.?i:l  -xlox-:;-  '20  Brx-r'  ei.v'  J:)'?'j:\vod'  vi"3,r  vdxiJ-  ns/.Iw  ,eIgoocr 

.sJ   '  ;■   i,r^io::.  eix'  ^^x'io'iq    i  f:e.dd-  ctolv;  Y-f-'Soic   \;d-Deic'  o;  eaxG   liJCv/ 

vsilt  a.-..  .'   Lnr   i  esvXsafQsxiiJ'   0^      QsiiBltz^   s-n  iJift  -^irx-    ilivr  ^'BxId■  iifxx' 

ax  x^o -■■?•/   ,Bi-i'lOT  .iusr-T  avjaxi  -raild-  Totorlloo  ^uai'   eilT   (ji   cr-iocreT 

"xx^rit  lo  fxoxjslifoljiio  x>   -^xhlsj.    xii    ©"xp-xiv;    .    ox-x.eLoB   en  v&c   ye'df 

.....V  3/5    boixf.  -iLxiOcT  l^ijnl:.>::-   '.   i^:    cj.s:  btov:  ©fiO 

i'i-   ni.   ^r.*;-.:'  of)   iibaocT  Ixjx"^ Jsw-txix   ;  rjs:..jsT9i..:jj  .'lev/    ..tav  ruBO 

or:  .ehaod  X'CVflir.H  ao  i'.z\u'  e^-   c'-^e-^JS  llr'.'  'Ic    3p-y:e 

I&3   oi  i.9i:&  sv/Jt'  cir*   350X-J'  i'.tr      .r^s^r-t- \t::o    e -^ 


IV  Tir:i  FuiTcmoj  op  tie;  fiitahcijtir  iit  iiidustry.  19 


in  addition  to  ^^ei^^;   a  nort^^ace  on  the  ^lant ,    they   say  in  one  case 

that   they   aj;ree  to   keep  a  certain  onount    of   assets   on  hand  as 

a  further  protection.        .Another  very  famous     way  of  getting   around 

the    industrial  hond  question  is     to   a,jree  for  e^rample   that  the 

bonds    sh.-.ll  only      run  for  ten  years   cmd   shall  be  paid  for  at 

a  certain   rate  per  year. 

There   is   also    a  question  of  the   interest   of  the   employes 
in  large   corporations.      So   far. as   1   ara  able  to   judge,   they   are 
rather  in  favor,    than  the  contrary,    of    the   large   corpcrationso 
They  cant  deal  \i  th  a  large   cor^'^oration  in  a  batter  v/ay  vjhen  they 
liave  trade  unions,    and  their   status   is   I'uich  better  fixed.      They 
have    in  the   large  corporations   a  chance  of     steady  woi'lc  which  "clioy 
do  not  have    in  a  srjall  one, because   in  the   large  corporations 
thoy   are  not    so    liable  to   shut   dov;ri,      \Ye  hear  of  large  corporti.*- 
tions   occasionally   dischargiix.'  men,   but    the  same  thing  e:cisted 
in  the  case   of  tiie   small  trader,    though  v;e  never  heard  of   it. 
There   is   another  poiiit    in  connection  with  this.      The  Depa,rtraent 
scores   in  ITev/ York  are    ready  to    pay  very   fair  salaries   to   persons 
who   can  go    in  t]ieir   in   cliarge  of  deijartmenr.s.      A  small   storkeeper 
v/ho  has    lade   a  success    ■)erhaps  na-y  go    in  their     as  head,  of  x  de- 
partijfient    or  assistant,    or  souet'niiig   of  that    .ort,    and  if   they  have 
ability   they    are  willijTg   to  pay     the.i  for  it. 

Anotlier   difficulty   in  /.Taking    these   combinations 
very  frequently  is  to   keep  persons  who' hove  been  iia-nagers    and 
owners   of  these   subsidiary  co  ipa,nies   out   of  tJiat  business  here- 
after.     Of  course   these   agreements  are  usually  made  to    say     tlmr, 
the  person  who   owned  these   plants  b^;fore   shall  not  go    into   the 
business  again,   but    often   it    is  not,    protection  because   a  man 
who   is    determined  to  be   dishonorable     can  always     find  a  way  of 
starting  up     competition.      Sow  one  ^cheme   of  getting  around  tiiat 
is  to  have  a  sort   of   advisory  board, nor  the  board  of  directors, 
but  who   are  to    advj.se   the  board  of   directors  wloat  to   do   and  the 
board  of   directors  may   or  may  not   take  their  advice.      They  give 
a  salary     varying   fro;.i  ''^1000.    to   .'|J2000.    for  being   on   this    advisoj-y 
board,    and  by  that  means   they  keep,    their   interest   in  the   corpora- 
tion,   and  add  their   interest  to  their  pledged  word  that   they 
will  not    ;o  into  the  same  business. 

It  very  oftenha;ppens       when  these  assets  are   taken  over 
that  the  co.ibining  compaaii/      will  ask,    i.nstead  of  paying    over  to 
the   subsidiary  company   nJ.l  of  the   pr-eferred  stock  which  under  tliis 
plan  would  be  payable  to    them,   to   have  the.i  deposit   tlicir  prefer- 
red stock  with  a  trust   company  until  such  tiv.ie   as   it    is    proved 
whether  they   can  collect  the   customers   accounts. 


.u^  vy'' 


:;^fPji^leq"  :  i::i*?X^3 --stir'-  --i^f  v   ■.,  ,      ^  ^-^"^cjfh^'t^^^;W^-''J^^'i^&rC-^ 

-rJ9^-  !^  j+.^sj^^f^fsa'-  '>['^ii?^5?==?^f-^:  §  hM-o9'    ^'■■•^    '^-•■'    "^-'' 

■q  y/t&^^  ...  ...  vtl^.-.^J'^C'Xc^i^'^q  ■  - 


IV  t:i^  Fir-TcrioiT  op  th"  pi  'aitci'^r  li!  i:rousTRY.  ?,o 


I  lirave   not  yet    explai'iecl  to   you   tlie  ;.iacliinery 
by  wiiich  the  new  co::-ipiny   is    .-'xstu^-ll^^   put   tocetlier.      T:iat   process 
is    souetliin;:   like  this.      Tiie   incorporators  of  the  new  conpary 
get   up  a  hoard  ox'   directors,  who   are  usually  clerks    in     law  oxfices, 
and  they  talce  oiit    a  charter   in   the   state   of  New  Jersey.      Tnat 
c]iarter  provides   t".iat  the   Cdipanj'-  can  he^in  lousiness   when   a  cer- 
tain nuaiher  of   shares   of  stock  are    :Jnhscrih^ed  and  actually  paid 
for.      Therefore  thir^  dura  ly  hoard  of  directors     ;;oes   to  'vork 
and  suhscrihes  t-.i"^-t    requisite  anount    of  capital   stoc^:    nid  pay 
it   in  to    'clie  treasurer  of  the  co.apany.      T'.^e   lav/ye rs  fumish  the 
monsy,   and  the^'"   iii  turn  put    it   into   their  expenses.      ITow  when 
tho   capital   stoc":   is    subsorihed  and  paid  for     the  co'.ipa,ny   i.s 
re.&.dy  to   do  husiness.      Then  tliey  call  a    leetinc;   of  tlie  board  of 
directors,    and  before  that  "'".card  of   directors   is  a  pLxt    a    propo- 
sition 0  1  ""leb.alf    0.:'  John  Jones    i;i  w'lich.  he   says, I   offer  to   your 
Honorable  ""card  the  followiiv;   proposition,    and  that    is,    if  you 
will   issue  to  :ae    )500,000«   v/orth  of  preferred  stock  .and   )500,000» 
coiio:i  of   the  A.BoCo    co"  rp:^iiy ,    I   on  .-ly  part  will  ajree  to    turn  crver 
to  you  such  nad  siic'i   other  co  ipcmies.      iTcw  the  "'loard  of  direc- 
tors  accept  the   "oroposition.      Thoy  appoint   a  trust   co.ipaiiy  to 
handle  the  business,    an^l  as   fast  as   the   coup.anjes    are  turned  in 
by  John  Jones  ' \xs    stock   is     turned  back     to   those  people.      The 
result    of   that    is   t'l^t     'lien  tho   new  Go:apniiy   is   foriiied,    no    one 
can  find   out   what  was   actually   paid  for  tlose   co  rpanies*      It    is 
not   on  the   record   individually.      It   is  all  pre-arranged,    and  t-iis 
is   pnly   the  Machinery  by  which   it    is  rotten   into    tie  hands   of  tiie 
new  corapany. 

We  will  turn  now  for  a  iionent   to   a  theoretical  case 
of  possible    econoriies  under    a  coiibination.      Of  course  these 
cohtainations    so:ie   of   then  liave  crea.tly  over-esti.iated  the   aiiount 
of   savings  that  tliej""  are  ^oing   to  raake ;   but    there   are  certain 
cases  'vhere   a  co  iViination  does   eff^fect   a  very  great   saving,    or  would 
if   it  were  possible  to   put    it    in  force.      And  I   a;i  proposing   this 
evening   to  bri;j^    one    of   these  theoretical     cases  before  5^ou, 
although  I|.,tell  you  beforehand  tlio.t   it   is  not  very  liken;^'-  to  happen, 

]ie  antracite   coal  field  of  Pennsylvania  are   int'ne 
easternpart   of  that    state   and  they  cover  sonething   lik3  three 
hundred  square  ::-illes.      It   is  tlie   only   field  of  any  conseiiuence 
in  the  UoS.    for  iiard  coal,      how   mnning    into    this   field  are   so::ig- 
thin";-    li'-e    seven   railroad  conpanies,   and  they  all  compete  v/ith 
each   otlier  in  carrying  this   coai.      They     hacve  f o  nned  a  sort   of 
agreement     .-Tiaon-;  thenselves   a.:  to   the  percentage  of   tlie  total 
ou.tput  w"\ich  each   road  is    likel^'-.    to    cari-y  and  will  carry. 


■.   fVJpK 


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.e.onfi-f  I.oe.c«;?i.f<j^.-..ejjj: 


IV  THE  FUNCTIOIT  OF  TIH  ITiTAilCISR   EI   Il'^DUSTRY.  21 


There   is  no   contract   or  agreement    in  writing,   "but   each  one   is 
bound  on  honor     to  Iceep   that   proportion  as   nearly   as   possible. 
These   railroads   are   either  affiliated  with  or  in  sone  cases  ov/n 
the  coal  coHipanies.      The   railroads  themselves   e.'ir.oept   in  a  few 
cases  are  forbidden  by  the   laws   of  Pennsylvania  to   own   land, 
but  inost   of   these  companies   ov/n  the   stoc':  of  the   co  '-1  company 
which  in  turn     ox'ms  the   coal  beds<= 

There   is   also   ano-tiier   elr-.menb  ,the   element    of   "ohe   indi- 
vidual operator^      The   railroad  companies   or   thos  coal  comp'-ofiies 
affiliated  \"/ith  the   railroad  couipanies   do   not  own  o.ll  tlie  cooJc 
There  used  to   be  until   quite    recently   quire  a  nuiifoer  of  what 
they  call   individual  companies,  thp;t   is   to   say, those  t".i.at  wsre 
not   affiliated  wit-o.  any   railroad  company,    and  they     wer:-;  ateays 
fighting  for  better  terms,    co:iplaining   that   they  were  being 
crushed  out.      They  are   sellin;;     out  now  slowly  to   tlio   railroo/l 
companies.      The  iiidj.vidual   operator  ha^      riglits  at    law  which  tlie 
railroad  compeuiies  pay      soie    attention  to,   but   ccmi-.iercially     they 
get  around  it  ,by  not  giving  them  co.rs   or  something  cf  that  Icind. 

One   result    of   t!isse   different    railroads    running   in 
there  is   of   course  tliat    each  railroad,  is   capltalizied.  for  all  it 
is  worth,    and  it  must   earn  interest  on  that  capita/Lieation. 
As   a  general  rule   the   earnings  come  prinoipally  from  the   carriage 
of  coal..      It  will  therefore  be  a.pparent   to  you  that    a  company 
like   tliat     must  have  a  oex'tain  nuxiber  of   collieries  which  will 
supply  coal  and  it  raiist   keep  t:iose  colli'?ries    running,   beca.use 
it   is  from  the  product   of   those  collieries      that   they  get   their 
tonngge  and  it   is    on  that     toimags  that  they  depend  for  their  bond 
interest. 

The   collieries      on  these   individual   roads     vary  greatly 
from  eaoh  other.      Some  of  them  are  very      expensive  to   operate, 
but  vdiether  ea.sy   or  difficult  that    road  m;j.st     work  those   collier- 
ies.     The  cost   of  mining   anthracj.te   coal   is  perhaps   •)loOO  or   ')1, 25 
a  ton.      Now   if    j.t  v;sre  possible  to     .supply     the   consuiier  by   shut- 
ting up  the  bad  collieries  and  wor Icing   the   cheap   ones,    at   least 
until  the  cheap   ones  were   exh'.iusted,    tlaere   is   no   doubt  but    that 
a  very  consideraJble   amount   of  money  could  be    saved  on  SYery  ton. 
But  under  the  present  circumstances   tho-t  saving  is   out   of   the 
question. 

Then  again,   when  one   cf   the   roads  that   operates     a 
colliery  finds  that   it   is   r-u.nning        away   aliead  of   its  percentage, 
they  have  to    shut   down   or  work  on  half  time  until  they  tliink  they 
have  caught  up  with  tlieir  percentage.      Tiiere    :^ain  is   a  very  great 
waste;    it    is   expensive  and  it   is  liard  on  tlie   operatives. 


^if:^ 


tx: 


■■■■'-■  ,"-   ■  -.\  -:.v^-----^-T-'--   r-r-^-^airitu^*Ofi'v^?l'xi^&#»T^^ 


IV  TBJZ  PUITCTIOII  OF  THi:  FIITAITCIEH  III   IlIDUSTRY.  22 


Moreover,    a  great   and  needless   expense  arises   fron 
the  lio.uls   over  the  mountains.      The  gentral   ra-ilroa.d  of 
New  Jersey  stops  where  the  City     of  \7:.]icesharre   is   j.n  -ciie  Susque- 
hanna Valley.    It  has  no  v/estem  connection  o,nd  therefore   the  coal 
that   it  mines  frortiits  collieries  must  co  up  over   ohat  mouiitain 
and  then  hauled  to   tide  waterr      On  the   other  hand,  the  Lehigh 
Vally  Railroad  is   on  the  other  side   of  the  inount-.iin,and  hauls 
a  great   part   of    its  coal     over    lae  mountain  to    the  western  states. 
So   that   those  two   coal  trains  with  loaded  cars      of   co  ■'J.  are  -pass- 
ing   eac"i  other  -^oing   over  this  mountain  all   the  tlmci;    a  perfect 
waste. 

Then   there   is    anotlier  thing.      Tivery  company  has   its 
sellin'';   agents.      These  coal  agents  and  the  system  of   distribution 
are  very  expensive.      On©   selling   agent   could  sell  the  wliole   c-mount 
of   coal  much  cheaper. 

A^^; '.in,    I   suToose  you  Icnow  t'lat  when  a   large  co  ibinaxion 
is  formed,    one   of   the   principal  things  that   comhination  tries  to 
do   is   to    make   a  study  of  the  industrial  field  so   fa,r  as   its  own 
"business    is   concerned.      ITothing    of  that   kind  is   dene   in  this 
anthracite  "business  "because  we  liave  no  statistics^     Nobody  knov/s 
how  many  tons   are   sold  every  year  in  Buffalo,    for  example.      Each 
company  laiows  how  much  each   one   is    selling,   but   what    Lhe  total 
is   nobody  knows,   and  nobody   Ioio'cto  whsthf^r   it   is   in  proportion 
to   population.      There   is   no    S3rstematic   study     of  the  situation. 

The   result  of    all  that   is   tlvxt   if  these  companies  could 
be  put  together  in  a  combinECion,   tbst    is,    if   the  coo,l  companj.ss 
and  the   raJ. Iway  compajiies   could  all  be  pat    together,    a  great 
saving  would     be   effected.      I  have  statt-d  on  another  occasion  that 
it   is  vsy  individual  opinion  that   coal   could  be   reduced  in  cost 
to   the   consumer  from  50   cts»    to    ^loOO  a  ton  if  that   cc.ibination 
could  take  place.      The    rate   of  wages   of   the   operatives  could  be 
raised  25  ctSc    a  ton. 

But   the   state   of  Pennsylvania   is  very  hostile   to  ar^- 
thing   of  that    sort, and  there   is   a     pr-ovision  in  the  lawG   of  tliat 
state  that  nothing   of  this   kind  shall  takepMce.    If  I  were   adviser 
to   the  State  of  Pennsylvania,    I   should   say     to    tliem  that   if  it   is 
your  wish  to    do   something   practical  toward   reducing   the  price  of 
coal  to  your  consumers  you  had.  better  force  these     companies  to- 
gether rather  than  force  them  apart , because  that   is    the  only  way 
you  will  get  a   reduction. 

Now  the  question  comes,    suppose  this   covibination  could 
be  made,   would   it    reduce  t]ie  price   of  coal.      Miat   is  to  liinder 
the  people  from  putting   the     price  up  instead  of  down?  There   is 


r»l»T. 


•  :.i-v.:      ■;;o\  :j;^^.^'-    '.: -•  r'y 0 riB    ax    e't;      '       ;...  -     :^ 

'"'56   -jiuLLIee  enO  .-;.€"■'/ 

- -■'--^■■---     -..    -  ...■.:;-;    ■    ^:j:^v  J,  .  .    worcd   /.'o^/.  o:>:-rr,iTi9rt.  -,;■■.;.-;  A 

■  ;    .^.  xtogry^  .x;TaK:9.--ij|.Q.a,  8:XJ3,:  ^n-for  .v/^- 

^.'  •  ■  '•-  --  ^..•■.-  .   -::.:/.     -}::i:mi     f- 3^  ktrr 

.  ^ :  ■  ^        ?  Cite  ':;  J.T  .feff  f-^  ir:>  'c?:^^!^;^  >}::uyti ;  V'-mC  :;;  .fi^tri-  rsRMi^.. 
••v:-JrjJiiiiCJ3^^,;'- ■  •    ■    .     "iril^v  'k^-    n:r   :/  .    >: 

:^'   sr...;qrj;i8    ,  ci-.:;rno  -i  rm  sas-.Lto  -.spol^ 


■i. 

! 

o'V-v.- 

*"                              -''    i 

.'-    ■ 

V7>ir 

■;  v.; 

v-i^iV.'SiT 

:ii?texl> 

-tici 

ii'i' 

^3: 

^  C^■  ■^. 

,  ^/i  cp-  •     + 

.I-- 

'■S:JT>S^'!  0  r    .;  i.) : 

IV  TH!3  HJNCTIO;t  OF  THH  I?rjAlTCIER  IIT   I-.IDUSTT/o  23 


a  great   deal  to      hinder  then.      T]ie  price   of   anthracite   coal 
is  now   as  high  as   it    is   possible,    econonucally     speakiic  »   to  put 
it.      They  have  already   lost  a  great  deal  throu  h  gas  and  oil 
competition.      Then  bituuinous  G0.•^1   of    tlie  very  best   qu?,lity  can 
be  burned  if  the   necessity  sliould  arise.      You  can   rssx    assured 
that   no   -natter  xti-xt    \o^  ]iappen  anthr?-cite  coal  will  never  be 
substantially  Iiigher  than  it   is   now.      There   is  also   the  possibility 
of   electric    conpetition. 

Furthennore   it   seems    to  ii\s  that   such  a  co-ibination  ss 
t.'iat   would  only  prepare   for  t}ie  contingency   of   so.ie   such 
CO  ipetition  as   electricity.      I  thin'c  that    soneti.ne  we  will  have 
electric   conpetition  of   a  severe  kind  v/ith  ruithracite. 

Then  I  believe  that  the   financial  people   if    t'ley  could 
go    into  t]iat   co  ibination  would  be  willing  to   reduce  the  pi'ice  of 
coal  one  dollar     if  they   could  :nake    a  larger  profit     t'.ixn  at 
present.      They     recognize  the  force  of   public    opinion, and  tliey 
would  be  the  first  to    recognize  that   they  oug.-ic   to   share  their 
profits  with  the  public. 

There   is   a  strj.kin";   case   of   the  benefits  wliich  coulfl 
cone   if  they  could  only  co.ibine.      I  do   not   tliink     th^A    the  force 
of  the   illustration  is   lost  by     the  face   th:it  we   axe  not   lilcely 
to   see   it  ,    although  it  nay  be  that  Mr:.   Morgan  will  do   souethirr; 
toward  puttirig    it  all  under  one    selling   agency,    as    soon  as  he  has 
time  to   turn  fro-i  the  UoSc    Steel  Gorporotion  and  Ms    other  la/^e 
interests. 

Now  of   course   every     co:.ibxna"cion  con   not    reduce  prices 
as  much  as   that   to  the  consuiier,   but    there   is    always  a  possibility, 
and  I  look  for   tlae   final   outcone   of  that    reduction  in    orice, 
not   possibly     throug]i  the  good  '.vill   of   the  people,    for  they   are 
business  xien ,   but    through  the   force   of  circui.istances  ,    and  throvigh 
this   coixiunity   of    interests    of   tlie   railroads. 


•oOo 


I 


[larch   21,    1901 


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TH]  rj".tctio:t  of  Tsr.  FIIIAITCIjIR  lil  nrousTRY.  24 

L^CTUR"^Vo 
oOo 


I  liave  been  asked  to   say  a  word  about    soiie  of   tlio   actual 
"Tnetliods   of  transacting   business    in  \7all  Street.      There  are  certain 
terms   in  use  wMcji  you  will  not  understand  unless     you  are  spec- 
ulating   or  laave   studied  the    subjtcrb. 

We  will  take  for  example   a  snail   siiii  of  laoney.    Suppose 
that   there   is   a  stock  whose  par  value   is   100  and   selling-   inthe 
street  for  ')100.      You  understand  tliat   all  stock   is  based  on  100 > 
and  if  they  say      for   exnraple  that      a  stock  is    selliic   for  150, 
they  inean   150'to      llbw  nearlj'-     all  shares   are  ')100«  ,   but   occa3ion- 
ally  you     will  find  thea  at    )50S.    each, but  whatever  tjie   arnount   of 
the   stock   is,   when  they  say   150  t]iey  nean   150;"^,   which  in   -aie  case 
of  a   *50o    share  v/ould    le.an  .'W5. 

How  tald-nc   a  stock  at   100,   sellinc  at   par    '?100o  ,  we 
suppose  you  liave  co't   a-  tip  fro  i  somebody  that   that   stock  is  ^oinG 
up.      The  procedure   is  this:      You  i;o  to    a  stock  broker  and  tell 
hii.i  to  buy  one   share   of   this   ABC   stock  whic^i  is    sellinj   for  3l00o 
and  you  put   doTO  a  $10.    bill.      That   is  your  margin.      The  broker 
goes   out    in  the  street    and  buy  ;   that   stock,  takes   it    around  to  a 
banker  and  borrows    )90o    on  it,    or  as  near   ,'?90o    as  lie  can  get.      As 
a  general  thing   the  broker  wa.nts     the  amount   of  nargin  froii  you 
that   the  bonk  wants  fron  Mm,      That  borrowing   then  is   straight 
out  and  out  borrowing   f:ror\  the  bank  of    '^90.    on  which  the  banlc 
charges   the  broker  interest,    usually   about    4/C»      Ne-vertheless  by 
long  custom  the  broker  ha.s  a  right  to   charge  you   6^. 

The  transaction  you  see   is   just   this:   You  have   put   down 
$10.    and  you     are  the   owner  of  that   stooko      You  are   entitled  to 
any  dividends  paid  on   it  ,   but  you  have  not  got    it   and  can  not  get 

it  unless  you  pay  for  it.      At   the    sane  time  the  brokers  charge 
on  all  sales   for   ccitLiission  1/8  of    oijie  per  ceiit,    plus   some   little 
incidental   e:.cpenses  ,    such  as  UoS«    Government   tax  and  so-iethlng 
of  that   sort.      So   that  your  expense   is   the   coiauission  of  the 
broker,   the   interest   on  the   ''?90o    of    6;t,   and  the   incidental  expense. 
Then   if  you  sell,   as  you  would  ho,ve  to   do,   you  have  just    the   scone 
thing    over  a^ain. 

You  v/ill   notice  what   is   called  taking   a  flyer   in  the 
street   is  usually  one  hundred  shares  and  the  brokers   comi:iission 
on  that    is   just    '^aSoOO  both  btiying  and  selling. 

T]ie  more  conservative  brokers   in  Hew  York  ask  20    ooints 
mar -in.      The    reason  of   that   is  t]iat  these   stocks   are  continually 


.wmj^fi  ■  -^  "•  ■■^^■T  "        -Bv^m  rf[T 


T.r-.-ijC- 


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V  TH3  inn.TCTIOlI  OF  TSC  FIIJAITCIER   lU   I-HUSTRYo  2t 


goinc  up  more   or  less  wit^iout     much    reference  to    tlieir   intriiioic 
value,      i^i.e  "brolcer  wants   to    avoid  any  trouble   about  liavin;^  t:ie 
mar';;in  affected  by   sno.ll  fluctuations  ,30  lie  usually    asks   20 
points,   and  you  would  liave  to   put    down    '"SOo    and   -le  v;ould  borrow 
■)80c    on  that   stock.      There   are   other  brokers  wiio   are  willing;  to 
accept    'plOo    on  one  stock,   particul  aaJ.ly     if   they  Imow  who  you  an 
and  that  they   ca2i   rely  on  you..      There  are  also   certain  brokers 
that  v/ill  soneti^ies  take      a  snail  amount    of  noney      froii     a  clerk 
or   somebody   else  on  a  5  point     lar^ln,   but    they  are  the   e:a;eption. 

How  let  us    su"')pose  tho.t   for  soiae   reason  you     have  put 
down    'ilOo    and  tiiis    is  your  "xar-jin..      A  iiar'in  is  nothin'j  but   a 
mortgage  that  you  have   -^ven  for  the   9o;^  of  th.?-t  noney.      Let  us 
suppose  that   for   .JiO:ie    reason  you  are   svire  this   stock  is  ::oinc  up; 
but  unforeseen  thuv'S  have  happened,    as  the  news   of  a  war,   and 
down  the  thin;  goes   5  points.      The    result    is  the  broker's   ..iar,;;;in 
is   affected;    the  b"iiik's   ios-r^^in   is   .aff ected;ajid  the  broker  notifies 
you  to   pay  ;'?5<,    -loreo      You     go   around  there   end  pay    .)5=   more  to 
keep  up  alv/nys   5  points-      Tf  you  do  not    respond  to  his   notice  lie 
sells  you  out;    tliat   is,   ]ie    sells   the   stock  for  95,    and  after  tak- 
ing  out  his  coraciissions,    hands  you  the  difference. 

If  on  the  otlier  liand  that  stock  should  jo  up  to  105, 
and  you  go  around  there  and  say  you  will  take  that,  he  sells  at 
that  and  hands  you  ;'^15o  less  e:cpenseSo  You  ;aalce  the  difference 
between  wliat  you  put  up  and  what  you  getc 

In  cases  vrhere  a  small     5  point     largin  is  accepted, 
th^  usually   eisk  for  what  they  ctJ-1  on  the   street   a  stock   cr  der. 
That    is  to   save   the  broker  fron  possible:   losso      It   is   anorder 
allomng  iiiu  to   sell  that    stock  if   it    should     decline   3  points. 
The  point    ox    that    is  just   this:      T3iis   is   a  legal  and  bindinj  con- 
tract between  the  broker  .and  yourself  >    so    txiat    if   tie  stock  should 
fall  all  of   a    ^udden  to   15  points,    the  brolcer  would  iiave   the  right 
to   ;5ue  you  for  the  difference  of   5  points.      You  are    responsible, 
but   tlie  person  w!io    is  willing   to  g edible   on  a  5  point  i.ia.rgin 
viiile  theoretically  Jie    is   responsible  for   it    practically  he  has 
no  money     or   else  he  would  not   do   it.e      If  that   stock  begins  to 
iirop  the  mofnent   it  gets   to  97  that  broker  telephones   over  to   tlie 
exchange  to  sell  that   stock,   and  he  takes  his  chances   on  -lis 
being   able  to   telephone   over  to    the   stock  e. xh.arge  and  get  that 
stock   sold  before   it  goes  downto   95.      In  other  v/ords,   he  has 
two   points   safety  there  which  he  can  take   a.dvantage   of    and 
if  he  does  not   do    it  he   loses,   because  the  person  who  takes  a  5 
point  gaiible  has   no    reserve   and  ^le  would  be  certain  to   lose. 
That    is   not  considered  very  good  business. 


''^'TrrijTSTfi; ■"■ ' T^ ■•.•r-rr^r-- . :  "' -"T.T.-  •Tr.T--rrr- 


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■'•toil..-        .o^'t^    v-O0>       .-c  ;  ■■.'--,      S.r>:<.  :^^sii:'J 

.  ^rt(LSc^;'©n£-r>£jfiu'.t:-£:t.,.'.:i'-fitji'.j-;t;jc  •   ..         lle'-'y^pdaeioaa'sx^o 


-^•P,,^- 


iSLi.      .v-.-i^.-.;    ....^-v  ,   .:.Q^  (.  f,.i,;.v'^-?ii  :r-v,i2-   /.svif '  pyyiv  J ■^- ^-    "•''■>:■:■■- •^-■/^■+litRtu 


■  :^ilo^'Siiodii*3i ^ :ySi:::  ■'^-I'ri&i^::   .srrVc&b^  .52oSffi\;:  :  njiuli?.  sf/^jnitwafc 

--■•.  -:^  ■   :    ■:    ■  ■.-.    •  .   •  ■:.c  jT-;  .:.:.  sii/J; 

M;  ^■.,  .    ;-:..    ■      ■:.       i.    ^..:.;  ■  ^:    ......     ...   iwcJsd    J-o.S3ar:J- 

c.^  ri. :  e£[, ',  Dr-'C"  ':■■:■■'■:  .cigt; .  rr-'^  ■ 'i    '.:so^=.J;^:^^x^■SXii1S€»frMJD»:..'r■D6;^;: 


X  V  Tir;  ]7U:iCTI0"    op  ITT-  FETAITCr^R   I:.T   I'.IDUSTRY..  26 


A  tiT   is    a  danrierous   f  lin-^.      T'le    iin  that  lias   a  sure 
tlain-3    in  V7all  Street   is   a  iio.n  to    loo'':  out   for.      In  '.7all  Street 
tlie     lain  thirc    is  to    :'<:eep  your  iiind  jn  tlie   condition  t:i?-t   they 
say  the  hanks   assets    should  "be   in,    liquid;   because     theie   is  no 
place   in  the  whole  universe  wheie  you     are   obliged  to    choiig©  your 
mind  so  \Tuickly  as  you  are   in  Wall  Street   If    Ihe   conditions 
demand.      The   stubboon  man  has  no  business  there. 

The    rule    in  Wall  Street   is   let  your  ijrofits   run   on  and 
stop  your  losses.      If   there   is  a   declaration  of  war  and  stocks 
becin  to  ^'^o   down     sell  as  fast  as   possible.      If   everyt Jung  is 
joing  up   let  your  profits   run  until     you     thinJc  it   is  hig-^  enou^^ 
and  then  sell.      Brokers  will  perlmps   tell  you  that  you  ou-^ht  to 
wait  until  the  top  of   the  market    Js    reached,   but  tliat    is   not    •;ood 
practice. 

Let  us    su"oposc  that  you  are   on  the   inside   of    Ito   -io rr; an '  s 
CO  ipany  and  you  understand  that   soviethin^   is   i'oin^;;   on  about 
Co'Io<?:  St.P  or  Burlington,    and  so  you     take   a  20  point   iiarjin  on 
soie  Burlington  stock.      You     are  never  sure  of  anything   in  Wall 
Street     The  first  tiling  that  riay  liappen  is   tha.t    it  may  go   dovm 
two    or  tliree  poiijitb.      One  thin\,    is  the  omount   of   loanable  capital 
that   there  ::iay  be   in  New  York  at  the   tixae.      Just   the  monent  that 
loanable  capital  begins   to  be   all  taken  up,    so    that  bankers  begin 
to   say  I  think  I   ought  to  have  8;f  for  ny  money,    there   is   a  great 
effect   on  prices.      Usually  however  the   people  who  negotiate   these 
great  deals   look  over  the  money     ;r)o.rket  very  carefully,   and  if 
there   is   any  chance   of  tight  money  they  v;-j.].l  not  go  into   it. 

Of  all  the  r)laoes   in  the  world  to   viake  a  .lan  break  do'vn 
his  health, it    is  Wall  Street.      If  you  hi;7-e   a  large  amount  of  money 
depending   on  whether  stock     gees  up  or   down,    it    is  a.     seifc  re 
nervous   test.      T'le  Wall  Street  people  get  gray  by  the  ti.  le  they 
are  40  years   old. 

In   regard  to  selling   short.      It    is   only     about   one 
person  out    of   a  ]iundred  that    is  capable  ,h-is  the   nerve   and  mind 
to  makre  money  on  disasters.      That   is  what    it   aesns  to    sell  short. 
Ninety-nine  men  out    of  a  hundred  are   optiiiists   naturally o     We 
would  far   rather  ;iake  money   on  a  rising  .Jarket   than  on  a  falling 
market     Selling    short  means   sellir^  "VJiia.t  you  have  not   gctc      You 
go   to  a  broker  and  say   I   think  Burlington  is   goii-g   down;ther5?fore 
sell  one      share  Burlington,      You  put   up  the    same    .largin   as  before. 
The  broker  goes   out   on  the   street   and  borrows   a  share   of  Burling- 
ton stock  for  which  he   pays   a  cer-tain  sum,    a  small  percentage. 
That    is   a  regular  business.      People  who    are  holding   shares  for 
a   rise  are  perfectly  willing   to  make   a  few  dollars     by  lending  that 
stock  during   the  time  they     do  not  wa.nt   it.      The  broker  borrows 


V  THT  FUITCJIjIT  OF  TIT]  PIlTi\iTCr2R  liT  I^nXJSTRYa  27 


that   sliare   md  delivers    it   to   t'le  na,n  to  vrho -'  ^?.e  sold  it.      ITon 
you     sit  dovm    -aid  wait   for  that   stoc''c  to  _^o   down.      If  that   stoc': 
eoes  dov/n  to   90  you     cover,    as  t:iG   e^cpression  is;    that    i.o  ,   to   s-^^, 
you    ;o    out  and  buy   it   at   90  and  irxnd   it   b'lc^c  to   the  ..lOii  you 
"borrov/ed  it  froi.i.      That,    as  you  see,    co  ipletes  the   transactio.i, 
and  you     "^oave  vip,de   "^ilO. 

The   doncjer  of   that   thin;;    is   that    just   the  raouent  that 
that    stoc'c  "be'-ins   to  ,;o  w-y  you  h.-.^e  'jot   to   cover  at  ^vhatever  the 
price     lay  ho.      On  the  ot'ier  hand,    straiusge  tc    say.    sc  le   of  the 
best  fortunes    in  V/all  Street  liave  been  one   on  selling    short; 
because   it  tahes  nerve,    it   toJces  uind,    it   takes   careful   study  of 
the  situation  to  sell   ahort,   because   it    is   contrar;/  to  hLi:-ian  ua- 
tiAre.      Bat    if  you      really  loiow  wiiat   is  joijtc   to   ■■ia.i;)en,   uo  re   for- 
tunes are  ^lade  tiiat  w.iy  tiian  in  any  other  way.      If  you  siup]y 
gamble  without    inside  loiowledge   in  Wall  Street  you  are  certain 
to    lose  your  r.ioney     i"i  the   lon/j   run.      You  are   simply     bc^ttin; 
against  a  set   of  circunstances  you  know  nothin,;   ?,bovit ,    nirl   •vh-'.ch 
involve  not   only  the   condition  of   the  Burliiir;ton  Hailroed  but    the 
condition  of   things    In  China,    and  you     can  not    tell  what   -dnute 
a  good  piece  of  nev;s  v/ill  coiis   over   bhe  vrlre  or  a  bad  one. 
Uven  Ilr.   Llorcan  hi  iself  got    .sold  m:-st  beautifully..      He  had  co^tiit- 
nients   in  \7all  Street   for   the   reoiTEaniz;a,tion  of    cLio  Reading  Com- 
pany to  a  very  large   aiaoxmt    and  the  next   da-v     President  Cleveland 
came  out  witli  the  ¥enez;usla     proclanation,   ond  the  thin  ;  v^ent 
right  to   pieces.      If   it  had  been  anybody   else   it  would  have   rviined 
him,   but  he   simply  hung   on  a.nd   in  due  tii.ie   it   came  out   all   rijhl;^ 

One  tiiinj;     rare    in   regard  to    the  f  inane  in;.      The  word 
financing   as   it    is  understood   in  V/all  Street    leans  the  furnishi'ng 
of  the    \oney .      [Fro  ■  the  tiie   rai   enterprise  is    decided  upon  until 
the  bonds   or   s^iares  get   into   tlie  hands   of  t-ie  public   tliere   is   a 
period  v/hen  they  :;iust  have   the  -loney   and  they  liave  not    sold  tlieir 
bonds.      The   person  who   sup  ■>lies   that  money  x.o  then  is   the  Ixvnkor, 
who    is    said  to   finance  the  undertakiix",    not  penaanent 3y    co   ]ceep 
the  bonds  and  stocks.      The  usual  v/ay  is  to  go  to   a  trust   co.ipany, 
because  a   trust   co  ipai^''  can   do  what   a  bahJc  can  not  do,    that   is, 
lend  mon^  on  undertakings     which  are  likely  to    run  for   several 
months  or  even  for  a  longer  ti.ie.      '^'hey  crvn  do    it  safely  when  a 
bank  can  not  do   it   owiii;  to   the   condition  of   tlieir  deposits. 

The    individual   ownsr   of   a  factory     is   not   going   'to   turn 
over  the  factory  until  he  gets     money.      So  he   goes  to    a  trust 
company  and  deposits     the  title  deeds,    and  tliey  give  hii  a  cer- 
tificate and  so  vouch  money.      In  other  words  ,    the  trust   co  ipany 
practically   lend  t.iat  money  to   tlie  new  company  which  is  o-bout  to 
"be  formed,   and  teike  as   collateral  the  v/hole  papers   in  the  case. 


'^.tt^nr 


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rx '■r./.t  x>  ■"> .'  .-.t-c^ c. ; tr-it.ux-  i::;':  x       ; .    .    ,  -  ^  jZ. o'-  •."  .'r-j.nv  ,      ' .-  •  /   '•  ^■.- .f/^n i) ,  3f '  T 

■!;.-:.. -GdaA.aUT: J"  ~  '      .  :ibncvr  ioi:uO-'TiI     ,.\;!L;-^o:;v  j •  oijyi-);p §:;{>*■? **■  '..:)■£!■'■  "•■■^  '" 
•    :i    .xf^  r  ;  :i'.oli  ^  ;r,oo  vrsri  ex'd-  ?o:)- -xenr      ;:•?•!?:>  pfi ■-!:-' Y'^j.^oii-: ^; 


.!5f-'  ■ 


TBD  HJJ:TCTI,yj  OF  THI  FIlTAnCLIHR  ET  I:IDUSTRY.  28 


Ibat    is   not  tlio  best   kind  of  lending-,    accordinr^  to    the  "o-mkers 
definition,   but   it    is   the  kind  of   lendinr;  that  they  get  nore 
profits   out   of,   because   a  trust   co  ipany  that    is  willj.nc   to   finance 
a  concern   on  condition  that  these   '.o?;psrs   ar3  nut    in  its   hands 
sets    6;^    \nd  co missions.      But   the    risk   is  c^eat;and  that    is   one 
reason  v/liy  the    position  of  President   of   a  Trust   Conpimy  and  Pres- 
ident  of    I  Ba:ik     are   cjuite  different. 

How  in  re,2;ard  to  iioney  jnerhaps    it  would  be  v/ell  to   call 
your  attention  to   the  fact  that  Sqw  York  City  is    the  ^^reat   nlace 
where   all  the  canital  of  the  U.So    finally  ^-oes  th.aii  can  not  be 
used  .any7]iere   else. 

I  niir;ht   'jive  you  an  illustration  which  you     n^y  work   outo 
If  you  \7ill  take   the   report    of   th.e  Controller  of   the   currency, 
and  find  the  total   value   of   the  deposicj   of  the  natioxia].  banlcs 
a.ll   over  the  UoSo  ,    the   state  banlis ,    the  trust    ccipaiiies  , 
the    private  baiikers,    ^^^  uake   a  table    shov^inc  the  totaD.   a.icant   of 
money  deposited   in  the  UoS<.  ;    then  nake   another  table    of  the  Qi.'jount 
of  iioney  that   each  one   of   thsse  groups   of  bankinc    institutions 
hold  in  actual  cash;   then  take  the   Gtatenent    of  the  Treasurer 
of  the  UoSo    as  to  how  •■.lach  money     there   is    in  circulation, 
curious  results  will  follov/c        '.T.ien  I   looked  at    it   tluree  years 
aco     the   esti  aated   amount    of  ijoney   in  the  TJoSo   v/as    )lj500,00J,000o 
Now  the  aaount   tTjese   particular  institutions  held  was    )500,000,000 
which  leaves  a  difference  of    >1,000 ,00  ),000 ,   which  if    it  liad  txny 
ejcistence   at    all  was    in  the   nockets   of   the  people;   it   certainly 
was   not    in  any   institution.      ITc'  the    deposits   footed  up 
$4,500,000,000.      In  ot]ier  words  the   deposits   of   the  bankincs 
institutions   of   this   country   are  three  tines  the  total   ouount    of 
money  in  circulation,    and  they  are  nine  ti-ies  the  ainoun.t   of  nonoy 
in  t}ie  -^ands    of   these  banks.      ITov/  I   ask  you  what  was   it   that   con- 
stituted those   deposits.      Certainl;^   it  was  not  money.      It  was 
banki nj   credits.      It   shows  conclusively  the   large   aciouiTt    of  banlcinc; 
credit  that    is    done   on  a  very  snail  ai'iount   of  actual  circulatirx; 
ine'^iu  1.      ""he  barfcs    are   dealers   in  credits.      \7!iat    tlioy  lead  and 
what   they  finance  tn.ese   coiiponies  with  are   credits,    based  of  course 
on  the  o.ctual   standard  of  value. 

I  liave  been  asked  to    say     a  v/ord  about  what  fouis   a 
proper  co  ibination.      That    is    a  veiy  difficult   question,   but  we 
mirjiit  talk  about    it    a  minute   or  two.      A  co: ibination  is  not   necess- 
arily  successful  sinply  because  two  concsms  have  :^ot  together. 
There  r.Tust.be   elements   in  ccraon  so  that   tlie  business   interests 
of  those   concerns  would  be   furthered  by  a  consolidation. 
For   exaiTple,   we  "dll  take   the  case     of    tlie  lT,YoGenfcral  Railroad, 


.,..,., -.STCCtfi     •■  '■  '  '  .  j:    .t^-    isjd  ^^|•'.olfh^x^■.:b 

.  $ri.        .     .  ...  -.'  ''■    '     ..      .:    oi-'^3l.       ■    :-•    '  '    :-■■'■ 


r  r  '■■ «-.  ' 


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o  re' ayJ-d'j- 


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y,rit^xf.i.:;.'' ;.1" :.:::.  ■-:■■.    ;      ^crroir  '  ■■'-'  i.---a   Jx.x.[j    Ysnoi^f  .•,o 


".l5^  t!?^  0 ^.^  c-'l:^ /.^^"'^ '  ■  -        "      '■         ■^F'i^^^/'tiiS^  .^'^^■'"^^'•■^^M^'^s' 


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3i'd'    'iQ      oq^o's^..     r  ,_.•'.!:    ' -v; 


V  Tm  KWCTio':'  or  ?iin:  FiiLMTcrnR  ni  i^hxistry.  29 


v/hicji  was   "^ut    tocretlaer  "by  Coiiiodore  Vanderloilt .      It  does   not  neod 
ijiy   cixcycnent  to   .-3:iov/   tJiat  that  v;as  a  consolidatlonin  the  interest 
of   all   concerned.      By  the   consolidation  of   the  Burlij^tcn,   for 
Gxain-ole,    '•rit'i  the  !Te\v  Yorh  and  ITev/  Haven, alt hoUjjh  thoy  could  he 
put  together   financially,   would  "be    of   no  benefit  "because  they  do 

not   conieot  with  each  otlier.      ilow  in  the    scu^e  way      of  course 
firiTB   in  Hew  Yor'-:    md  Chica:;o   could  be    put   tocether  hut   the 
consolid?.tion  would  Iiave  no   effect   at   all,    unless  tliere   are   ele- 
ments     in  it  which  cab  "be  tahe  i  ^dvcntase   of.      Such  a  concern 
a.s  the  Aiaerican  Car  and  Fou}idry  Co:.nany     is  an  instinca   of  a  rood. 
consolidation.      All  of  those  concerns  were  coipeting   with  each 
other,    and  they   each   of  thei  had  a  very   large   amount    of  material 
on  liajido      ITow  they  do   not  huy     any  material  unless  xlxey  jiave  an 
order  for  cars.      Then  they     can  have  tliat   order  e-recuted  at   any 
of  their  various  p'^x'.nts.      The  hone  office  is  notified  of  each 
shipment   and  t3ie  hiLls   are    sent  to   the  custoiiers   frori  thsrv 
and  paid  to  the  ]ior.ae   of  fie  e. 

Now,   Gentlemen , let  me  soy  one  word  hefore   I  close,. 
I  have   failed  to   put  this    subject  "before  you  in  a  proper  lie  he 
if  I  liave  not   succeeded  in  ;.Talclnc  you  "believe  that   the   individual 
hl^n  in  htisiness     counts  for  :aore   evc-^n,    c&rtainly  as  r.iuch  as, 
he   ever  did  hefore.        Character   is   still  the  wain  thin;,   and  the 
man  \^^-lo    -lakes  truth  his    aim  is  ixich  Lioie   likely  to    succeed  in 
"business,    leaving   every  other  consideration  out   of  view,    t'l.in  the 
-lan  vfiio   does   not.      The   object   of   all  business   is  to    ascorcain 
truth. 


—  oOo- 


Ilarch  22,1901 


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qUASI               CONTRACTS. 
LECTURE        I. 
oOo 


During  tlie  past  year  we  have  given  our  attention  to 
pure  contracts.      It  is  necessary  in  order  to  complete  the  course 
that  we  Bhould  pay  some  attention  to     what  is  known  in  the  law 
of  late  years  as  quasi -contSacts .      Thiq  is   a  tenn  tha.t   I  do  not 
like  "because   it  does  not  mean  anything.    "Quasi"   is   simply  an 
apology  for  not  saying  Einything .     But  the  term  is  one  that  of 
late  years  has  "been  grafted  into   the  law  and  must  he  accepted 
as   an  admitted  factor  in     tho  terminology.     Keener  and  writera 
upon  the  science  of  jurisprudence  have  uped  the   term  end  ffijtened 
it  upon  the  law. 

Bishop  does   not  use  the  torm  in  his  work  on  contracts. 
What  the  others  call  qua.oi -contracts  he  calls  contract  created 
hy  law.  See  Bishop  Oxi  Contracts*   Sec*   181 

There  is  only  one  text-hook  on  the  subject  of  Quasi- 
contracts,   and  that   is  too   extenjive  for  use  in  this   school. 
The  important  principles   are  not  very  many,   and  I  shall  give  you 
in  a  few  lectures  those  that   are  most  important. 

Upon  the  subject  of  the  definition  of    the   term  quasi- 
contract,   see  alao  20  Pa  St.  465 

In  that  case  the  writer  of  the  opinion  divides   contracts 
into  three  kinds',    (a)   express  contracts;    (h)   implied  contracts; 
(c)   constructive  contracts.     This  lattor  torm  I  like  much  bettor 
than  "quasi-contrccts" .     He  says "constructive  contracts   are 
fictions  of  la^?:  adopted  to   enforce  legal  rightb  hy  actions  of 
contract  where  no   real  contract  exists,    express   or  implied." 

Quasi-contract  includes  obligations  imposed  by  law. 
There  must  be   an  absence  of  agreement.     The  obligation  ir  one 
which  is  imposed  by  law  and  enforceable  by  action  ex-contractu. 
You  romember     that  in  the  study  of  pure  contracts,  we  learned 
that  a  contract  is  a  rosultant   of  two   ideas ,   one  is  agreement 
and  the  other  is  an  obligation.     Where  there  is   an  agreement  that 
does  not  result  in  an  obligation  it  is  not  a  contract,  but  a 
quasi-contract • 

1.       We  must  distinguish  between  the  obligation  imposed 
and  the  legal  fiction  of  a  promise. 

Keener  says  that  a  quasi-contract  is  nothing  more 
thaji  a  legal  fiction.      I  can  not  quite  assent  to   it. 
That  there  is  a  legal  fiction  in  connection  with  the  enforce- 
ment of  the  obligation  is  true;  because  there  is  an  otliga- 


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q,UASI  •        CONTRACTS 


Imposed  by  law  and  when  you  enforce     it  by  action  ex-con- 
tractu,  you  aTor  in  the  declaration  a  promise,   euid  that 
averment  of  a  promise  is  false.      To   that   extent  a  legal  fic~ 
tion  is  resorted  to    .     But  the  obligation  is   a  part  of 
substantive   and  rot  adjective  lew.     Wo  must  koep  distinct 
the  obligation  end.  tho  fiction  which  is   resorted  to   to 
enforce   it. 

2.        There  must  be   an  utter  absence  of   pgreement. 

Keener  makes   a  mistake  it  seems   to  me   in  classifying 
a  contract  of  suretyship  as   an  illustration  of  quasi-contract. 
That  seems  to  me  more  like  a  case  of  pure  contract.      If 
A  signs  B's  note  as   surety  and  has  to  pay  it,  he  can  turn 
around  and  sue  B  and  recover  by  way  of  contribution  what  he 
paid.     Keener  says  that   is   a  quasi-f^ontract .      It  seems  to 
me  that  when  A  signs  3' s  note  as  surety  he  signs   it  knowing 
the  law  and  understandin^'j     that  A  has  premised  impliodly 
to  pay  it,    and  the   implication  ig  from  the  very  act  of  the 
signer.     An  implied  promise  is  a  case  of  pure  contract, 
and   note  a  quasi-contract. 

Keener  also   takes   the  position  that   the  oblj gabion 
which  attaches   to   an  innkeeper  at  k  comdion  law  is   a 
quasi-contractual  obligation.     But   it  seems  x,o  me     that   the 
liability  of   the   innkeeper  as   insurer  of   tho  baggage  is 
implied  from  tho  very  fact  that  the  man  goes   thore  and 
leaves  his  baggage-    implied  in  fact  and  not  imposed  by  law. 

The  same  is  trJie  of  a  common  carriers  obligation.  It 
seems  to  me  that  his  obligation  to  ship  the  goods  safely 
is  closer  to   an  implied  contract  than  quasi-contract. 

You  will   remeimbar  that  Anson  gives  us   the  various 
sources  of  obligation:    agreem.ant,   delict,   contract, judgment  and 
quasi-contract.     He  does  not   consider  the  lajt  one  which  we  now 
propose  to  consider. 

There  aro  four  sources     of  quasi-contractual  obliga- 
tion; 1.    Obligation  of   record. 

2.  Those  imposed  by  statutory  law. 

3.  Obligations  arising  from  individual  and 

domestic  status. 

4.  Obligations  dictated  by  reeasc^n  and  justice. 
We  will  take  thof.e  up  in  their  order. 

1.  Obligations  of  Record. 

T_ie  obligations  of  record  which  Anson  gives 
are  Judgment  and  recognizance.   One  of  these,,  a  rocognizance,  is 


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UASI        -        CONTRACTS 


a  puro  contract.      The  judgment  of  a  court  of   record  is  not 
a  contrac'c  at  all.      It  it   c;ls,:;sed  as   a  contract  in  Anson  and 
other  law  writbrs,  yot  Yhnn  pushed  to   it   they  all  agree  that  a 
judgment   is  not  a  contract,  tecause   it  does  not   result  from  eui 
agreement . 

1.  Where   the  term  "contract",    express   or  implied,    is  uned 
in  a  statute,    a  judgment  is  not   intended  or   included. 

146   U.S.   162  95  NcY.    428 

50  N.Y=    180 
(Contrary)   32  Vt.   21?. 
This  l>=it-t.^r  case  is  not     so  much  to   the  contrary  as 
first  se^ro^n.   In  that   state  there  was  a  statute  which  provided 
for  trustee  process,  which  is   the   same  as  gamishmsnt ; 
and  the   statute  was   in  these  wordss    ''All  actions  founded 
on  contract  expror^s  or  implied  may  be  commenced  by  a 
trustee  process"  •,   and  the  question  was  wliether  the  judgment 
was   included.      It  x'^a.g  held  that  suit  on  a  judgment  might 
be  maintained  undsr  thab  statute,  because  the  word 
"founded"   referred  to   tfcs  remedy  rathor  than  to   the  contract 
itse2f .      The  case,  however,   is  not  quite   in  harmony  with  the 
weight  of  authority. 

2.  A  judgment  is  not  a  contract  within  the  meanjn;?  of   the    ■ 
constitution  prohibiting   the  violation  of  the  obligation  of  con- 
tracts.    A  change  in  the  obligation  of  a  judgmant  is  not  a  change 
in  the  obligation  of  ccntr-act. 

146  U  =  S.    132 

Obi ?gationF   Imposed  by  Statutory  Low. 
As   an  illUiti',;:  Avion   •...b.u  follcwirg   actions   are  quasi-contrac- 
tual, (a)   The  action  of  dsbt  to   recover  penalties  for 
violations  of  sl-.atixr3S5 . 

(b)  ThcJ  action  of  mon^^y  had  a^id   received  to  recover 
money  lost  and  r^clnod. 

(c)  ^jie   8u;tion  by  one  v-inicipality  to   recover  of   another 
for  the   support   of   a  pauper:   that   ij   to   say,    a  duty  having  been 
imposed  upon  one     municipality,    if  ano-iiier  performs   that  duty, 

uit  can  sue  in  xassumpsic  or  quasi-contract,   and  recover  for  the 
support  of  that   pauper. 

10  Bo  Monroe  438 
2.  A  statutory  duty  Imr'-j^od.  on  one  party  but  performed  by 
another  ?rill  support  a:r si'.rrros it . 

5  Mass.    i>2o  45  Mich.   442 

But  jee   50  Me.   86 


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qUASI  -        CONTRACTS.  4 


3.  As0\ain.psit  is  the  proper  remedy  to  enforce  a  statutry 

obligation  v^ere  no  other  -remedy  is  provided. 

A  50  Md.    376  43  N.H.    451 

This  case   involved  the  personal  liability  of   the  de- 
fendant for  taxes  .      The  question  was  whether  or  not  you  could 
sue  him  personally  and   recover  judgment   against  him  and  levy 
on  any  property  he  might  have.      There  wag  no  provision  for 
it,   although  legislation  may  provide  for  a  remedy  against 
a  party  which  shall  be  by  action  of   assumpsi-c.      In  the  absence 
of  any  such  provision,   the   courts  are  not  uniform  as  to 
whether  there  can  be   a  remedy     against  a  man  in  assumpsit 
personally  for  having  1  ailed  to  pay  taxes.     Many  of   them 
hold  you  can  not  sue  personally,  because  the  law  makes   cer<^ 
tain  property  liable   to  taxation  and  if  you  sue  him  person- 
ally and  get  judgment  you  will  males  that  judgment   1  lien 
on  his  entire  estate.     Where   the  courts  hold  that  you  can 
sue  him  personally,   this   is  a  quasi-contractual  obligation. 
Oa)  Whore  the  law  imposes  the  obligation  a  promise  may 

be  implied  against  the  expr-ess   declaration  of  the  parties. 

130  Mass.    596 

Obligations  Arising  from  Individual  ajjd  Domostic 
Status. 
These  a- -8 obligations  arising  from  (A^  infancy; 
(b)  Insanity;   (c)  the  relation  of  parent  and  child;  (d)  the 
relation  of  husband  and  wifs.  Of  these  ii*  their  order. 

(a)  Inj'  ;.■:"-.■.;:;:  '^  n/    i.T'^aJit' s  liability  for  necessarios 
is  a  quasi-coniruat-url  l.it:.&i:i..:;.-.-7,  because  of  th3  fact  that  he 
has  not  the  Cc-^.-  ■'•■  ''■^'   n-:e>:>i  an  agreement,  and  not  having  the 
capacity  to  mf^.v.  ^  .  .-groem'-^rit  t,ri<=»  obligation  is  imposed  upon 
him  by  law,  for  \-'y,e   good  of  the  state  and  for  his  own  personal 
benefit.   It  is  a  valid  contract  but  it  is  not  a  pure  contract. 

See  Tyler  on  Infancy  and  Coverture  100 
To  show  that  it  is  a  qixasi  rather  than  pure  contract: - 
1.  The  contract  price  can  not  be  recovered.  If  an  infant 
makes  a  contract  for  necessai'ies  and  contracts  to  pay  a  certain 
sum  tor  them,  while  you  can  recover  in  asbumpsit  what  the  necess- 
aries are  reasonably  worth,  you  can  not  recovor  the  contract 
price . 

2-  An  infant  is  not  liable  on  a  promisorry  note  given  for 
necosBaries.  About  this  there  is  some  dispute. 
See  10  Johnson  33 
fc  (Contrary)  10  Metcalf  (no  page  given) 

See  1  Daniel  Negotiable  Instrument  200;  where  theso 
cases  are  reviewed  and  discussod. 


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I  (lUASI        -CONTRACTS.  5 

P 

3.    Infancy  is   not   a  defense   to   an  action   in  quasi- 
contract  where  the   infant's  tort   is  waived.      Thatyisj   where  you 
can  waive  the  tort  and  sue  in  assumpsit,  you  are  sueing  in  quasi- 
contract   and  infancy  is  not   a  defense. 

58  Me.   254  1  Gray  50S 


P 


I 


Inaajie  Persons.      Insane  persons   aro  liahle  for  nee  ess- 
arise  furnished  them  on  an  action  in  quasi-contract,    and  the 
rule  in  reference  to   their  obligation  are  the  same  as  those  of 
the  infant . 

37  Ala.   496  ?9  Am.  Dec.  6? 

Hush and  and  Wife .      The  husbands   obligation  to  pay  for 
necessaries  furnished  the  wife  may  be  quasi-contractual.      Some 
are  quasi -contractual  and  others   are  purely  contractual,   and  we 
must  keep  them  distinct. 

1.  Where  the  husband  is  held  liable  on  the  theory  of 
implied  agency,   as  is  of  ton  done.o   it   is  generally  a  case  of  pure 
contract . 

That   is,    if   the  husband  and  wife  are  living  together, 
from  that  very  fact  there  would  be  an  implied  agency  on 
the  part  of  the  wife  to  bind  the  husband  for  necossarios, 
but  that   agency  is  implied  from  fact;   it  is  not  a  quasi- 
contractual     obligation  but  a  pure  contractual  obligation. 

2.  Where  he   is  he3.d  liable  against  his  express  direction 
not  to  furnish  necessaries,  ho  is  liable  only  in  quasi-contract. 

Thus   if  he  has  turned  her  away  without  cause,  you 
can  furnish  necessaries  to    the  wife  and  sue  him  in  assumpsit 
on  a  quasi-contractual  obligation. 
34  Engo   Law  &  Eq.   £'li 
(a)   The  husband  may  be  held  liehlo   in  quasi-contract   to 
an  attorney     for  his  services  to   the  wife  in  procuring     divorce. 
That  seems  to  be  rediculous,but  it  hsB  been  held  so   in  England. 
I   shall  call  your  attention  to  some  cases   to   the  contrary  in 
this   country. 

(b)  So  he  may  be  held  liable  in  contract  for  her  attorney's 
fees   and  costs  on  a  complaint  and  warrant  made  by  the  wife  to 
make  him  keep  the  peace. 

39  N.H.    123  28  Wis.    51? 

(c)  Only  reasonable  compensation  can  be   recovered  in  quasi- 
contract   in  these   cases.      She   can  not  make  any  o-nd  all   kinds   of 
contracts.  30  Ga.   81 

(d)  The  weight  of  autliority  is   that   an  attorney  can  not 
recover     of   the  husband  for  services   in  divorce  proceedings* 

I   told  you  that   some   courts  haid  that   they  can  do    that, 
but  the  weight  is  the  other  way,   on  the  theory  that  divorce 


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QUASI        -        CONTRACTS.  6 


is  not     a  necessity. 

2nd  Bishop  Marriage   and  Divorce  974 

Contracts  Dictated  jy  Reason  and  Justice. 
As   a  matter  oi'  fact   reason  and   justice  do  not  dictate   any- 
thing.     The  whole   question  here   is  whether  assumpsit   caji  he 
maintained  under  the  circum^tsjicos ;   that   is,  whether   there  is 
a  quas i-c on ti" actual  obligation  arising  out  of   the  fa-cts   in  a 
particular  ca,se. 

The  first  form  is  the  wavin/^  of  tort  amd  sueing  _in 
assumpsit.      The  right  to  do   this  depenas   a  groat  deal  upon  the 
nature  of  the  tort  and  whether  the  wrong-doer  has  roceived  any- 
thin^s  of  value . 

The  doctrine   of   quasi-contract  under   this  head   is   said 
to  be  placed  upon  the  theory  that  -ohe  defendant  shall  never  be 
allowed  to  enrich  himself  at  the  expense  of   the  plaintiff,   and 
wherever  he  does,   a  quasi-contractual  obligation   arises   to  pay  the 
plaintiff  what   the  defendant  ought  to  pay  in  order  to  nake   the 
parties   on  an  equal  footing.     But  I   do   not  linow  whether  unjust 
enrichment  is  a  satisfactory  term  or  not-      The  question  is  undsr 
what  circurostances  may  tort  be  waived  and  ags-umpsit  brought. 
The  question  was     discussed  in     Torts-      I  will  give  you  soLie 
general  propositions  on  the  subject. 

1st.  A  purely  personal  wrong,   such  as   assault  and  battery 
or  libel   and   slander,    can  not  be  waived   and   assiimpsit  maintained. 

(a)  But  if  benefit  has  been  actually  received,   tort 
may  be  waived,    even  thought  it  be  a  personal  injury. 

That   is   to   say,    if   the  wronc-doer  not   only  committed 
personal  wrong  but  also  received  substantial  benefit  in 
the  eye  of   the  law,   then  you  can  waive  tort    and  sue   in 
assumpsit . 

18   Ind.    440 
In   this   case,    a  man  was  falsely  imprisoned,    and 
a  contractor  got  the  benefit  of  his  services  by  contract  with 
the  prison  authorities.     Sfter  he  was  released  from  prison 
he  sued  the   contractor  and  was   allowed  to    recover  on  an 
implied  promise  by  law  that  the   contractor  agreed  to  pay  him 
what  his  services  w^^re  reasonably  worth.      That   is  stretch- 
ing  the  law  a  little  but   it  was  done   in   Indiana. 

See  9  Mo.   493.      To    the   contrary,   147  Mass.    307 


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35 


QUASI    -    CONTRACTS 


This  ATissouri   case  was  where   a  woraan  wau  fraudulently 
induced  to  iriarry  a  man  who  was   already  inarried.      She 
liYed  with  him  throu^^h  his   natural  life  ;   then  made  her   claim 
as  his  v/idow  and  found  that  he  had       a  wife   still  living. 
Then  she  filed  her  claim  in  assumpsit  against  his  estate, 
avering  that  he  promised  to  pay  her  what  her  services  were 
reasonably  worth  while   she   lived  with  him.      Of   course 
he  did  not  do   it,  but   the  question  was  whether  there  wag 
a  quasi-contractual  obligation  which  might  be   enforced 
against  his   estate      Tlie  court  of  Missouri  holds   that   she 
may  enforce  the  obligation  under  those  circu^natances  • 

The  Massachusgetts  case  is   squarely  the  other  way, 
on  the   theory  that   she   lived  with  him  not   expecting   to   re« 
ceive  any  compensation,    and  therefore  she  can  not 
afterwards   recover  compensation.  , 

I  do  not  like  the  Mas sachus setts   cs^e  as  well  as   the 
Missouri  case. 


•oOo- 


May  27,    1901 


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II  CONTRACTSo  8 

LECTURE  II, 
oOo— 

We  were  finisMng  up  the   subject   of   quisso-contracta  , 
and  came  to   that   portion  of   it  whdch  pertains  to     such  obligations 
as   reason  and  justice  dictate.      I  had  giren  you     the   first   propo- 
sition    tlaat   a  purely  personal  wrong   did  not  give   rise  to   any 
quasi-contractual  obligation, 

2.  A  simple   trespass  to   personal  property   resulting   in  injury 
will  not   sustain  an  action  in  quasi-contract. 

The  basis  of   this   action,    as   I  told  you,   was   some  bens- 
fit  to  thve  wrcng-doer;   and  thereof d  if  he   received  no 
benefit   from  the  trespass,    as  where  he  had     destroy6;d 
ajiother's  watch,   the  a-ction  of    assumpsit   could  not  be  me.in-- 
tained. 

58  Minn.    112     .  94  Ga.    347 

20  Kans.90 

3.  Conversion   of   personal  property  justifies   an  action  in 
quasi-contract. 

There  arc  two    proposit j.ons  upon  that   »ubjGct    in  this 
co\mtry  that    are   in  conflict,   and   I  will  give   then  both 
to  you  and  tell  you  which  I  tiiin"'c  will  prevail  evontuallyo 

(a)  At  the  common  law  assumpsit   coull.d  not.  be  maintained 
when  the  goods  had  not  been  sold  by  the  weong-doer. 

That    is,    if  a  roaxi.  tool:  your  horse,  you  might  sue  him 
in  trover  or   trespass  but  not   in  contract  unless  the 
horse  had  been  sold,   and  if  you   sued  him  in  contract  you 
could  recover  only  what  he     had  received  and  not  what  the 
horse  was  worth.     Tha.t   is   sa.id  to  be  the   rule   in     Michigan 
today,   but   in  most   states   it   is  no  longer  the   law. 

22  Jiass*    285 

(b)  By  the  weight   of  authority  assumpsit  for  goods 
sold  and  delivered  may  be  maintained  for  goods   converted,    even 
though  thoy  have  not  baeii  sold  by   the.  wrongdoer. 

Most    of   the   states   take   the  position  at    the  present   time 
that   if   a  man  should   steal  t  horse   or  any  otlier  p'»;rsonal 
property   and  use   it,   you     can  sue  him  in  a.^sumpsit  ,not  for 
money  had  and   received  but   for  goods   sold  and  delivered,    on 
the  theory     that  you  have  sold  that  horse  to  him  and  deliv- 
ered it   ajid  an  implied  promise   arises   that  he  must  pay  what 
it   is    reasonably  worth. 

121  NoYo    161 

4.  Trespass  to    real  estate    resultlrg    in  profit   to    the  wrong- 
doer will  sustain  assimipsit. 

(a)   Pasturage   of  cattle   trespassing  will  sustain 
assximpslt. 

12  Metcalf  42 
Contra.    22  Vt.    516 


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II.  C  0  N  T   R  A  C  T   So  9 

Where  cattle  or  horses  have   trespansed  onto  the   land  of 
another, of  course  the  owner  of  the  land  can  sue   in  trespass; 
"but   the   question  has   arisen  whether  the  owner  of  the   lend 
caji  sua   in  assumpsit  and   set  up  the  the  owner   of   the  cattle 
promised  to  pay  what   damage  might  have  "been  done.      In  iny 
judgment  he  may      rtjcovor  at    law  in  an  action  of    assumpsit. 
The   obligation  springs   f  roincussi-contract ,    and  is   not 
expressed  or  implied  but   is   im.TiOS6d  by   law. 

(b)  /V  count   for  vise  and  occupation  of   real   estate 
(that    is,    a  promise   to   pay  what   the  use   and  occupation  of   the 
real   estate   is    rea.sont.,bly  worth  where   it  hs^  beenoccup.i  C;d)   may  be 
maintained  gainst  a  trespasser  as  against  a  tenant     holding  over 
after  notice. 

But  not   against   a  mere  trespasser,   with  whom  there  has     been  no 

contract  relations. 

The   law  upjon  this   subject     of  use   and  occupation     and 
the  right  to  bring  assumpsit  for  it   is    decidedly  unsett  Jed. 
There  is   a  line  of  cases  lAfcich  holds  that  you  cansue   in  assump-" 
sit   and   recover  in  contract  s?!S  egainat   a  mere  trespasssr; 
but  there  is   another  Line  of   authcritios  idaich  holds  that  you 
cannot   sue   in  assumpsit  and   n-.coVf:->r  in  n;.iani    contract  unless 
there  was  a  previous  contractual  relation  existing  between   nhe 
parties,    as  landlord  and  tenant.      In  Michiganthe  law  is  with 
the   second  class   of   authorities. 

24  Ala,,    420  45  Ms.    41 

(c)  Cutting  tresis  a.nd   i"omov:'ng  stone  from  the  earth 
will  sustain  contract,    if   repla-vin  or  trover  would  lie. 

This  is   a  trouble  some   ciuasti  on.,      I   shall  give  you  one 
authority  supporting  thj.s   proposition  end  one  tot  he   contrary. 
The  contrary  opinion  holds   that   contr&ct  will  not  b(F  sus- 
tained unisss  the  tree>s  or  stone  h&:j-e  beenconverted  into  money 
and  soldo     But   -^   should,  say  tiiat  the  weight   of  authority  today 
is  that  where  aqy thing  eiffixed  to  the  freehold  has   been  taken 
away  and  convei'ted  to  the  use  of  the  defendant,   ha  may  be  sued 
in  assumpsit  wherever  you  can  maintain  trover  or  replevin. 

58  Minii,    112  Contra«    43  NoHo    202 

SoTlie  tort  can  not  be  i^  waived  if  the  defend.£,nt  was   in  adverse 
possession  of  the   land,   because  you  can  not   try  the  title  to    land 
in  an  action  of   assunrosit. 

8  NoYo    115 

MISTAKE  o 
This   is   one  of  the  n.-'St   fruitful  sources   of  quasi-contract- 
ual obligationa.    but   thore   is   no  need  to  discuss   it   at   length 
beca\ise  the   principles   are  very  simple. 

1«      This   action  is  usually  for  money  had  and  received,   or 
for  money  paid  by  mistakec      If  there  was  an  actual  mistake  a  quasi- 
contractual  obligate  on  arises. 

2.    It  may  be  maintained  for  the  value  of   services    rendered 
under  mistake   of  material  fact, 

46  MOc    App«    496 


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II  C    0  N  T   R  A  C   T   S    o  10 

In  this  Missouri   case  a  slave   not  knowing  he  was   emanci- 
pated had  worked  for  a  series   of  years   for  his  master,  and 
aften"/ards  hroucht  suit  to    recover  for  the  value   of   the   services, 

See  also  40  Llinn.    399    (Case   of  guardian  and  ward) 
2.      Benefits  conferred  v/ithout    rGquest  will   scrnetimes   sustain 
an  axjiioTilief ofe^wg^smli  irilst  have  'beeniiiiposed  on  the   defendant   in 
the  interest  of  the   public. 

If  A  should  pay  B's   debt    to  C,    he   cotild  not    recover 
from  B;   hut    if   the   law  imposed  a  duty  upon  B  and  that   duty  is 
one   in  which  the  public    is    interested   in  having   it   done,    and 
it   is   not  performed,   then  a  third   person    aay  perfoim   that  duty 
and   recover. 

1  H.    Blackstone   90 
This  \vas   a  case  in  which  the  father  of  a  woman  sued  her 
husband  to   recover  expenses  that  he  had  paid  for  the  funeral 
of  the  wife   of  the    defendant. 

2.    If  the  benefit   is   conferred  v;ith  apparent   right   and  not 
of ficiously ,assumpsit   will  lie. 

106  Mass,    286 
This  was  the  case   of   a  boat  v/hich  ha.d  beenlost   at   sea  and 
cast  ashore.      The  plaintiff     took  cars  of   -il-ia  bos/t   and  spent 
money  in  having   it    repaired.      The   owner  f.int;.rily   appeared  and 
denoanded  the  boat.      The   plaintiff   sued  the  cwr^-r  on   the   theory 
that  he  had  promsed  to   pay  hlin  vjhat  h.e  had  expended  in  re- 
pairing  the  boat.      It  was  held  that   inasmuch  as   the  plaintiff 
had  conferred  this  benefit     under  an  apparent  right, 
assuiipsit  would   lie. 

Money  paid  under  duress   or   lege.l  compulsion  may  be  re- 
covered in  quasT  contract. 

SriTerm  Rep»    308 
14   Q,oB<.D.    811 
That  finishes  all  I  cai-e  to  say     on   the  subject  of  quasi- 
contract. 


CONTRACTS   PROHIBITED  BY  STATUTE, 

You  remember  Anson  gives  us  three  sources  of  illegaU.ty? 
contracts  contrary  to  statute,  contrary  to  rules  of  common  law,  ^  . 
and  against  public  policy.      I  want  to   speak  about  statutory  prchi- 

bitionin  the  UoSo 

There   is  a   difference  between  the   law  of   the  U»Sa   and 
the   law  of  England  on  this    subject.      Parliament  can  prohibit   ary- 
thing.      Tiiey  have   no  written  constitution, and  no   law  which 
prevents  them  from  taking   private  property  without  due  process   of 
law.     With  us   it   is  entirely     different.     We  have  both  the  Pedai^al 
and  the  State  Constitutions.     When  you  come  to   statutory  prohibi- 
tion it    is   a  troublesome    questionin  this   country  to  what   extent 
you  ajre  interfering  v/ith  the  personal  liberty  of  the  citizens. 


■     0O'-Afir.TT%'^     ■  III 

-i ii^Jii^^Q s€J*"w- #i";*¥' M'CPfc . * PO.:  3Y*;,??Ici  "^jb'- 6 e jjc  !" 

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II  C   0  II  T    R  A  C  T    S    .  11 

Articel4,   Section  1,   of    tiie  U«So    Constitution  provides 
"Nor  dlisill  any  state  deprive  any  person  of  life,    liberty  or  property 
witlioiit  due  process   of   laiv". 

Blackstone  gives  three  absolute  riglAs  of   individuals, 
personal  libertyai,   priva,te  property,    personal   security.      Jud^e  Cooley 
adds   the    right    of  contract   and  the  right  to   fomthe  carriage   rela- 
tion. 

1,  In  the  exercise  of  police  powers  the  state  may  prohibit   the 
making  of  contracts  where   the   public   good   demands  the   restriction. 

This   does   not   interfere  v/ith  tlae  constitutional  provision 
that  no   legislature   shall  pass  a  law  impairirg    the   obligation 
of  contracts.      That  cons  titution  provision  applies      to   con- 
tracts  ali'eady  made  when  the  state  is   passed.      Me    are   spoalri  ig 
now  of   the  power  of  the  legislature  to    say   that    in  f  vtture   no 
such  contract   shall  be  made. 

(a)   As  a  general   rule  the   courts  will  not    review  the   le,;i2-' 
lative  discretion  in  this  natter. 

127   U.S.    678  99  IT.Y.    377 

The  U.S.   Suprane  Court  and  the  II. Y.    Supre:ne  Court   differ 
as  to  the  right   of  the  legislature     to   prohibit   the  sale  of 

0  leomarg  ari  ne . 

2.  The   right   of  contract   is  a     natural     right,  whic]i  csxi  not 
be  interfered  with  on  the  pretense  of   public   good,  where  tiie 
general  public   is   in  no  way  ai'fected  by  it. 

113  Pa. St.    431 

Tliat  was  a  case   in  which  the   legislature  had  passed  a 
law  prohibit ii"^  making  of   contracts  betv/een  companies  and  en- 
ployes     for  receiving  a  certain  part   of  their  wages   in  storf:: 
orders.      The  court  held  that  was  anunlawful  interfereixie  \ivith 
the  freedom  of  contract.      The  court  held  it  was   an  attempt 
to  prevent  persons  who  were  sui  juris  from  making   their  own 
contracts. 

109  NoY,    389 
70  Mich.    534 

This   last  case   arose  from  anattempt  on  the  part   of  the 
legislature  to    prohibit   liquor  dealers   from  bee orje    surety   on 
the      liquor  bonds.    The  Supreme   Court   of  this  state  held  tiaat 
the    right   to  become   surety   on  any  man's  bond  itsls   a  property 
right   and  the  legislature  could  not   deprive  a  manof  that   right. 

1  have  never  believed   in  that  opinion.      The  general  principle 
that   the  right  to  become  a  surety  is  a  property    right   is  x-rue, 
but  here   is   a  bond  ruiviing  to  the  public  and  the  public  has 

a  right  to  say     what  kind  of  sureties    it  will  have. 
147    111.    66 
In  this  case,   there  was   a  statute     providing   that 
corporations   should  pay  their  laborirg  men  weekly »      The  court 
held  that   it  v/as   an  unlav/ful  interference  with  the   right    of 
contract. 

See  also,    33  W.   Va.    179 
115  Mo.    307. 

oOo June   3,    1001 


•    c. 


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Ill  C   0  N  T   R  A  C  T    S    o  12 

LT5]GTURE      II  lo 
— oOo— 

GAIiES      OF     chance; 
1.   Gaining   e>:ists  whsrevor  a   stal:o    is^  laid  on  the   ciaances   of 
a  game.  61  LIiciao203. 

In  this   case  vse^-^rs  wiiro   laid  in  pool   rooms    of  Detroit 
on  the   result   of   a  gsine   of  bass  "ball.      It  was   contended  that 
that  was   not   garni r^  v/ithin   the  meaning   of   the  statute. 
The  Supi'^.n::  Court   of  this    state  held  that    it   was. 
Where   the  statute  prohibits  garni rjg  money  bet    or  premiums   offeiTd 
can   not  be   recoA''ered  by  the  xrimi.zr^ 

1  Co&  P,    613      (dog  fight) 

2  Wills on  36   (foot   race) 

3  Caraobell  140    (oock  f  i^.it) 
24  IHcho    'I'll  (horse   race) 

(a)   But  a  preraiuni  ofxe;red  for  a  trial  of   speed  in  horse 
racing   is  usually  regatded  as   collectable.     The  cases  are  not  unifc-niu 
The   disposition  of   scrae  courts   is   to  hold  that   a  prerniuu 
offered  for  lx>rse   racing-  can  not  be   recoTored  if  it  is  not 
paid,  but  I   think  the  vfsjghl;   of  auiiiority  is   thr.  other  way- 
Public    sentiment   is   not   strong  tnciigh  to  uphold  the  laws 
against   horse   racing. 


the 


SI  IToY..    532 

S3  Ind,    58 

57   Icwa  481 

2. 

Most 

states   forbid  the    lot  tory 

bu 

sine 

ss  • 

In 

such 

Ca-r! 

purchaser 

of 

a  ticket  can  not    recover  r<hat 

he 

has 

drav/n 

• 

1  Watts  Cc  Sargent   1 

81 

28  Ohj.o   Sto    251 

Contra,    4  lIoH.    285 

3. 

In  games 

of     charjos  the     money 

may 

be 

recovered 

of 

the 

stakeholder  at  any  time  befo  ro  it   is  paid. 

4.   Any   contract  to    reunbursc  ancgent  for  Ics  ses   incurred 
by  him  in  gambling   contracts    is  vo?d. 

You  remember   in  Anson  a  Orso  v/as  cited   and  the   principlf; 
announced  that    if   a  broker  had  been  hired  in  a  gambling  trans- 
action and  he  had   incurred    expenfte,    he  mi.ght   recover  hxs   cint-' 
missioi:is   and  expent:es.      That '  is  the  "Hirglish  law,   but  by  tne 
weight   of  authority  in  this   count r^'  it    is  not   the  D.ajr/. 

71  he..    -800 
52  WiSo    593 
97    ind.  191 


LiqUOR   LAV/S  AS  AFISGTIi\T(J   CQi^RAjTSo 
Tiedmaji  in  his  work     on  Police  "ower  argues  that  these 
laws   are  unconstitutional,    that   they  are   an  unlavsful  intsrf  or  fn-:.:! 
with  the  private   right  to   do  business,   and  that    a  law  prohibltiu:^ 


II 


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:no.::  t!/ J  J: . 


Ill  C   0  N  T   R  A  C  T    S    o  13 

the   sale   of    intoxicata.ng   liquors    is   on  theory      gainst   the  Consti- 
tution of  the  U.-,So 

I'iednian  on  Police  ■'^ow-;r,    SOe-?, 
Some  courts   also    doubt   the  constitutionality  of  th  ese   lews,  but 
they  all  adrait   that  the   la.w   is   set- bird   » 

Ic.    On  T:he    saJ.s   of   liquors   in  violation  of   lav,    the   seller  can 
not    recover  ■ch.s  "^utchftsa  priceo 

26  Vt.    184 
14  N.Ho    2^4 

(a)  The  fact  tliat  the  vendor  supposed  he  was   autaorjzsd 
to   sell  is   iii;ini,terialc. 

47  Ileo    471 

(b)  Siraple  knov/.'ledge  that  the   purchaser  is  going  to   si'll 
the   liquors   in  violation  of   J.aw     does  not    prevent    the    seiJler  fro  a 
recovering   the   pricsc 

On   tliis    subject  you  will  find  the  ca^es   not   agreed' 
2o   An  account   stated  on  an  illegal   sale  of    liquors   is  void- 
■'•liat    is,   if  the   purchc^sers   and  sellers  get  tc^^ether  and  agree  np'.-rj 
th.e   amount  due, that  qgreenir-^nt   is  without  ■validity^      A  proniisscry 
note  given  is  withouc   validity  because  th;5rs  is  no   consideration 
for  it. 

108  liLass.    579 
3o   Payments   on  an  account   consist*j.r:g  of      lega,l  transactions, 
and  also   an  ills^al   sale  of   liquors,  will  be  applied  first  to   ths- 
legal  transactions,   unless   there   is   some   agreement  to   the   con- 
trary. 

J.05  Mass,.    87 
4<,   As   a  genei'al   rule  the   statutes  apply  only  to    sales  within 
the  state. 

3   R^Io    175 
The    liquors   in  this   case  were   sold   in  New  Yorlc  and  they 
were  to  be  used  in  Rhode  Isll.and.      The   action  was  broight   in 
Rhode   Islajid.      '^■he  PJiode   Is]-and  statute  proliibitod  the  sale 
of   liquors,   whereas   the  New  Yorl:   law  permitted   ito      The   qTjes- 
tion  arose  whether  the  RLiode  Island  statute  could  be  enforr:fd 
as   against    a  sale  made    in  New  York.      The  courts  do  not   agree 
upon  this    subjexit.      It  w&.s  held  in  -liiis   case  that  tine   salt' 
in  New  Yorl:  could  be  enforced,   because  the  Rhode  Island  rrl:r.tate 
had.  no   extra-territorial  force. 

(b)   The   sals    of   into.d. eating   liquors  to  be   used   in  air.'.otba! 
in  violation  of  the  law  will  not    sustain  an  action. 

41  Vt,    655 
Sale   of  liquors  in  New  York  to  be  used  in  VerirDnto 
The  facts   indicated  clearly  that   both  parties   conterrplated 
a  sale  of   those    liquor's   in  Vermont   in  violation  of    'the  Ven.icnt 
law,   and  that  being   so   the    purchase  price  could  not  be    recov- 
ered. 

See  also     47  Me.    58 
6  Iowa  410 


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Ill  CONTRACTS.  14 

(c)  But   if   the   sale  was  valid  where   made  smd   there  was 
no    fraudulent   intent   to  aid  the   purctaser  in  violiti'Tg    the  laws   of 
another  state,   the   sale  will  he  upheld. 

1  Gray   536 

(d)  Sales   of   imported   liquors   in  the  c  rl^^^  i:*y.l  paclcage 
ere  not   in  violation  of   a  state   law  against   sellir^-   liquors. 

135  UeS.    100 
Iowa  had  a  Is.w  agarinst    bhe  S3,le   of    i'ltoxicatin^   liquors, 
a  strong;   prohlhito  ry   law.      The    dafendant   in  this   case   imported 
some   liquors   from  another  state,    and  sold  them  in  the   original 
paclvage-      He  was   prosecuted,    and  the   defense  uvas  the.t   tJae 
prohibitory  law  of  Iowa  was  in  violation  of  the  Constitution 
of   the  UoSo    in  that    it  was  an  unlav/ful   interferenco  v/itti  inter- 
state  comzneroe.   The    defendant   prevai.led.      The  court  held  that 
so    lorig    as   he   did  nothing  hut   handle  the   original  pack  ego 
across   the   state  line     he  could  sell,   hut  what   the  purchaser 
could  do  was  a  matter  of   conjecture  and  suspicion. 


eOWTRACTS   ..'lADE   ON  SUNDAY « 

At  the   consnon  law  a  contrv.'t  mede  on  Sunday     was   just    as 
good  as  a  contract  made   on  a   secular  day=      It   is  only     by  virtue  of 
the  statirtes  that  these  contracts  are  prohibited. 

43  Mich,    58 

1.  Sunday   laws,   those  prohibitirg   the  mald.ng   of   contracts   of 
the   doir-g   of  business  are  not   an  undue   interference  with  religious 
liberty. 

53  IToV/o    Rep„    o91 
This   is  perhaps  one   of   the  most   exhaustive   opinions   on  the 
subject   of  Sunday   laws,      '^here  has  beena  contention  for  mary 
years  that  these  Sunday  lav/s   ar8  in  violatiDn  of  one's 
constitutional   right   of    religious   liberty.      But  the 
question  is   now  throughly  settled  that   they  are  not  an  undue 
interference  with   religious   liberty   .      There  has   been  much 
discussion  as  to   whether  Christianity  is   a  part   of   the  corxnon 
law.      The   courts  have   settled     the   question  not   on  the  ground 
that   these  Sunday   laws   are   for   religious   purposes,   but    on  \;he 
ground  of  public   health  aiid   comfort  and  und«^r  the   police    .xj-fcr 
of   the  state  they  are  allowed. 

2.  Where   the  law  provides  that   ary  one  vrho    sliall  do   any   "labor, 
work  or  business"   on  the  Lord's   day   shall  be   punished,    all  SQCu2ar 
business  is  ■■    presuaed  to  be   inc];jidedo 

The    ycaouces   in  the    ^rbates   differ.      Sodie  prohibit  cormnon 
labor,    some   labor  or  cchsr  business,    some    all  secular  busini-so^ 
and  some    say  any  business  whatsoever.      This    does  not   include 
mutual  promises    of  marriage, 

5  Gushing   539. 


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» 

(a)  Y/laere  only   "servile   labor"   or   '''worlcLnG"   is   prohibited, 
comrnerciil  contraxDts  are  valid. 

A  proinissory  note   in  sucli  a  state   is   just    as  ^ood     on 
Sunday   as   aq/   otber  day. 

13  V/endell  425 
Wlaere   the  statute  prohibits   the    expos irg;    of   joods   for    sale 
on  Sunday,    as   it   does    in  IT&w  Yor-Cjthat    does  not    prohibit   a 
single  saleo   A  horse   trade  is   just   a^  good   on  Simday  in  Nev; 
York  as    on   any   other   day,   because  that    is   not    exposing  goods 
for  sa2e  within  the  meam.n^   of   the   statutec 

55  1T»Y»    682 
44  Barber  618 

(b)  The  maWLng   of   a  contract   is   not   labor>\7ithin  tiie  mean- 
Itoq   of  the  Sunday  lavrs  ;  but   in  r.iv  judgment    it    is  business  *      '^he 
distlnctionperhaps   is  a  fine   one>   but   it   exists. 

21  Eans,   il38 
107   Illo    42? 
Contra,    4  Ind,    619 
62  Indo    365 
These  cases    are  not   reconcilable   at   alio      In   tlie   "-^nsa-s 
case  the    statute   provided  for  "con.ion  labor'''   aiid  it  -ma.s  he3jd 
that   an  agreement  to    sell  cattle  ijade    on  Sunday  was  cali-d. 
The   Illinois  case  was  where   one  en':er?;d    inl-o    a  contract  for 
the    sale  of   a  vessel  on  Sunday^    and  i';   V7as  held  that   that  ""sas 
not    common   labor..      But    in  the  indiajia  cases   it    is  held  that    the 
givirg    of   a  promissory  note  on  Sunday  is   corxaon  labor.-      I  do 
not   believe   these    I'^^t   cases    are   ~cod   law.      Some  people  gf.t 
upon  the  bench  v ho    a.re    r^;l:).gious   and  some  who    are    irrej.jgioas, 
?jid  there    is   a  difference  of   opinion  which  no  human  pov/yr  can 
prevent. 

^c)    In  general,    ccrm-iercial  transactions    on  Sunday    are   void 
only  when   secular  business    is   prohibited. 

(d)      A  ■"jrfitten  cont"sict   signed   on  Sunday  is  valj.d  if   de- 
livered on  Ilonday   or   ■a.vy    sab  st  i.'c  ut, e    secular  day. 

3.      \7orks   of  necessity  or  charity    aro   permitted  in  all  the 
states  o 

The    question  then   arises   viiat    is  necessity     or   charity 
so   that   a  contract  may  be  -lade  ,      It   is  not   clear,   buc    I  v/ill 
give  you  one   or   two      sug;jestions„ 

(a)   \7ork  on  Sundaj'-  to    prevent   loss   on  a   secular  day  is 
not    a  necessity. 

112  :'Iass«    467 
Tills  was   a  cas^^r   in  vhich  it  was   necessary''  to   run  a  power  mj 
.  ■        day  and  night  tlir  o-.Tghout  the  weelz.   They   could  not   afford  to 
stop  the  :Tiill  so   as  to  malce   repairs  so    they  made  the    I'epei  rs 
on  Sunday..   The   ciuestion  was     whether  or  not    the   sei'vices    render- 
ed on  that   day  could  be    recovered   for»    Tiie   plaintiff  said  it 
was  a  work  of  necessityo   The   court   held  that   it  was   not   a  work 
of  necessity,   becaiAse    it  was   done   simply     to  prevent    loss   on 
a  secular  day. 
But  the  preserving    of   property   exposed  to   imminent   danger  on  Sunday 


^^:v:i 


•  L." ... 


'.Ljcicpssoa' 


trr 


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Ill  CONTRACTSo  16 

is  a  necessity. 

Tlie  most   conmon  example    is   the  gatlieriiTg   of   crops    on 
Sunday     to   prevent   damage  by   rainc      As  a   rule   that   is  not   a 
violation  of  Sunday  laws. 

22  Barher  539  , 

Tl&hatever   is   essential  to  be  done   in  order  to  preserve  life   or  prop- 
erty is  a  matter  of  necesFity. 

128  Hasso  l/'.8 
14  Vt.    332 
(b)   Charity  ir    active  goodness.      Alia  cfs   to    relieve 
suffering  and  a.cts   con/iected  with  religious  worship,   arr   regarded 
as  worths   of  charrfcy. 

43  Michvl 
This  was  a  case   in  viiic:i  the    question  was  whethsr  a  sub-- 
script  ion  to   a  church  on  Sunday     v/as   a  good  contract.      In  Ilichigan 
and  most   states   of  the  Union  taose   contracts   are  sustalnod   on 
the  ground  that   it   is   an  act  of  charity. 
98  Pa.    St.    389 
Contra.    62  Ind.    365 
This   last  was    the  same  case   in  wnicii  the      Indiana  Court 
held  that   a  proniissory   note  given  as  a   subscription  to   a 
church  was  cocmon  labor  and  wa.s   not   a.  work  of  necessity  or 
charity  and  was  therefore  voido      The  case   I   do  not   think  is    in 
accord  with  the  weight   of  authority. 


-■-oOo- 


June  4,    1901 


.  '-■■  r  I':  ix 


aco'-:  .    '\.  :-'   ■  ^:.'    c;x    -..; 


f'y-       I  »  ■, 


•s     ..       '      > 


T  ■•*.  TO 


::-■-■       •:  ■-  -^"^^c  '   ■■/■  f?%  -  •:•■'•    :.::o::i    ■i.i'^^'- 

"•6~       cjb      .^'•■:;.    C'-:.  '     ' 

cS.':'  .i^'x  ^*^    ..:^-'  ■■•■■:or 

.';•■'  •  •      '     .^       ■■       ■\  ■;-■-■     .:.:■'••  c:    \    J.f>n.'    ;  j,.;'fi 


■  sjT, 


LUIGTURES 


0     N 


CRIMINAL  LAW, 


B     Y 


PROF.        JSROiiE        C.        KIIOWLTCIT. 


Roported  "by  3.   K.   \7heeler. 


JNIVERSITY        OF       MICHIGAN 


Law  Class   of  1905. 


Edwards  Bros, Publisliers, 


Ann  Arbor,  Mch.. 


1902  -  1903. 


I  CRIMI2JALLAW  1« 

LECTURE      lo 
— .~-«  oOo   •^•»-~^ 

Nov/  the  very  first   thin.':;  that   every  man  ouc^ht   to   do      'ffineti 
he   coumeiices   Vue   study  o±    a  subject  is   to   inquire  about   the  Author- 
ities on  it.  Wiuit  are  tlir-    a^ithorities  xan  the   subjorit   of  Crimin- 
al Law  and  by  7/ay  of  irt reduction  ?^et  us  go  back,  ^ 

The   e3^"l?Lest   authorities     are   those   ofcourse  which  otyht 
to    attra.ct  our   attention  fir^.t   and  /re   '.vant  to  ;:;o   back  rnd  ±sauc  get 
down   at   th-^    root   of   ^he  matter,   and   the   earliest   authority  as  far 
an   I   knov/  is   a  li  +  tle   book  written  in  the  reijn  of  Henry  the  First 
and   i^ublished  in   about   1100. 

The   interesting  fact   of   the  book  is  not  that  it   contains 
30  much  law  but   is   the   fact   that  it  does  not  define   crimes   at  all. 
It  .'^ivps   all  crimes   of   common  la^'  and  pronounces  punisnment  but 
dce;i  not  define   one  of   them.        It  pronoun  ces   the  punishment     for 
a  person  guilt   of  murder  so,    and   of  burgelery   so,  but^^rhat     they  are 
Is   not  defined o        It   is   taken  fcrir  .^ranted  that  in  110     every  one 
laie'v  wheA,    chey  were  and  all  that  it   had   to  do  was   to   provide  punish" 
meut,   in  other  words   that  is   one     indication  of   the  Unwritten  law 

The   next  book  after  this  wag  Srackton,    then  com.es   ^Joke, 
Hale    and  Hawkins.      These  are   four  jreat   land  marks  before  Blackstones 
time. 

Brackton's  work  was   vvritten  about   the  middle   of   the   131113 
Centuryo     This  work  can  be  found  in  the   library,  written  in  dci:ble 
column  one  in  Latin  and  the    other   in  English.        If  anybody  should 
study  Brackton  for   a  momment   th.Qy  would  be  impressed  wifh  the 
fact  that  Blackston«  must  have  drawn  almost  entirely  his   knowledge 
of  the  Law  from  Brackton. 

Now,    speaking   of  Blacks  tone    Cor.imentaries,   ^ich  I   sup- 
pose you  are   all  familiar  with,   do   you  know     that  when  Blackstone 
wrote  these   commentaries  he   w.s   only  32  years   of   age,  yet    from  the 
time    that  he     wrot   e  them  alons     about  1?50  until  the     present 
time    ,   as   far    as    the  United  Sta.tes  is   concerned,   it  is      a  groat 
book.        Llodem  lawyers  ma.y  lai^h  but   it  won't  do  them  any  good.     B 
Biackstone   is   here   and  has  boon  here  for   over  a  century,   and  is 
likely  to  stay  here   for  sometime   to  com.e.  '.Vhy  is   that   so?^      Not 

because  Blackstone  wrote  ajiy  bettor  than  anybody   else  can  write 
but  he  wrote  from  1758  to    17R1   alon-;   a  period  of   r,ome   20  yerrs   -e- 
dition  a.itcr  edition  which  were    the    results   of      a  course   of  lect- 
ures which  were    liven     at   Oxford.  He  was  writing  law  of   En::.land 
Just  when  v/e   were  bre3k:*/away  from  England,   aiiythin:;  ?/rittcn  before 
was  too    early    «      Our  common  law  is  based  on  England's  common  Law 
and  that   is   the  ieason  why  it   is   the  best   book  -  it  was   -written  at 
the  best   time. 

The   next   one   after  Urackton  was  Hale's  Pleas   of   the 
Crown,   published  in  1736,   arid  was  published  after  his  death  by  man- 
uscript.    This    is   a  book  of  great  merit. 

The  next   one   is  Hav/kins "Please  of  the    Crown  ".     That  was 
published  sometime  after>   it   supplies   some   cJf  the   deficiencies   ^f 
Hale    ajad  3i sloop.        Bishop  is   the   jtoat  authority   ojQ  America  on  Lay, 


I  C  R  I   M  I   N  A  L        L  A  7/  2, 

he  was   n-^Yerfieless  a  very  conceited  luan.       Read  some   of     Bishops 
pref-accs   to    sorne   oT  Jxia  books   and  you   -vill  at   once   see  the   truth  of 
this  statOKent.        He  was,  hov/ever,    a  very  great     writer  and  a  man 
of  profound   learnin:;;. 

Of   course,   I   pass  "by  Bl:',okstoae,   because  you  -vill 
be  f"^,-iliar  -'/ith  him     if   you   are   not   already. 

Since  Blackitone' s  time  the   only     nev/  law  v/ritings  which 
are   of  very  g^-oat  import njice  is     Russell  on  Crimes.        It   is   in  two 
volT-unes   aiid  is   to  be   found  in  the   library. cf  most  Americ?Ji  Lawyers.. 
Of   the   /j-neric?.n  Authorities      say  Bishop  is   one  of  themost   stately 
writers   that  I    ever  read,    if  he  has   anythin;;:  to   say. 

Then  there   is    /Taarton.     He  has   two    or  three  volumes   on 

subject. 

Then  '.7ashburn  has    a     volume,    also,    there  is   one  by  Lawson 
one  by  Clark,,        One   of   the   best   books  that  has   come   out    recently 
is    a  bock  written  by  Marshall  and  Clark.      It   is    in  two  volumes   and 
i:^   certainly   a  very  ine::pensive  book,. 

Now,  many  attempts  have  been  made   to   define   Cr  ime,      I   am 
not    coing  to    ;ive  you   a  definition  of      Crime   today,   I     will  howevor, 
call  attention  to    the  fact   that   there   is   as  many  definitions   as 
there   are   crimes.        These  definitions   do  not   a^ree  for  manifest 

rea^sons,    and   the  reason  is    a  clear  one.      Crime  as  a  local   concert 
has   not  been  the   same   at  411   times.        This    is   evident   from  the 
various  histories  upon  which  proscriptions  have  been  made.        In 
the   early  history   of  England,    Crime   seems   to  have  been  regarded  as 
private  wronj,    rather. M^n^uni shah le     by   those   injured  by  them  and 
that  was   done  by  private  war.        In  the    early  nlstory  of  the  world 
aftcrvTards  by     moral   sanction  and  then  by  public    execution  of   just- 
ice  as   it   is    now  dons.  In  Er;3:land    and   in  this   Country     crimes 
are   reQarded  as      offences   against     the   public,   a  public  wron';   and 
punishable   throu::;h  the  administr-r.tion   of    the  Law, 

llo'^v^    there   were   throe      epoches   in  the  history  cf   criminal 
Jurisprudence.        The   first  po riod  was   a  period   in  English  Law, 
know   as     the  period     befora'the   Norman  Conquest.        Criminal     pros- 
ecution and  the    accusation  was  not  by  written  complaint  by  was  by 
coEimon   report.        If   a  party  was  accused  of   crime,   if  he    could     get 
a  dozen  of  his   neighbors   or   ancpstors  to   come   and  s^j^ear   that  they 
beleived  in  him  he  v/as   sent  free.        Jiluch  like   a  certificate   of  cood 
moral   conduct.        Of  cour-.e,    the   abuses   to  which  that  le?.d   resulted 
in  its  abolishment  before  the  Norman  Conquest   really  arose. 

The   next   Trial  of   im^portance     before   the  Norman  Conquest 
was  Trial  by     Ordeal.      Trial  by  Ordeal  was  trial  by  fire   and  water. 

If    a  man  vas   accused  of  crime  he  v.'ould   strip  his  band  and 
olbow  and  dip  his   arm  into     moulten  lead,   and   if  he  was  unharmed 
he  was   considered  not  quilty  of   crime. 

The  Theory  of    that  Trial  was  this:    That  if  a  man  was 
innocent  he    -ould  be  protected  through  miracles,    in  other  words 


\  C  R  I   M  I   N  A  L        L  A  V/  3 

it  w'ixs  held   tbat   tli.e  Almiglity  would  protect   the  innocent.     That 
of   course,   pasr^ed  away   rind  only   repiuins   as  a  histoi-y. 

The  n:xt  period  was   that  l:now  as   the  Noriiian  Conquest. 
The  I'Tonr'an  *^onqu-,3t  brou::ht  '?7ith  it   sori.e  vory  import.?nt  chSLn':e3   in 
tryin'--;  i    sues   of  f'-ct3o 

One  was  the  Kings  Conrt,  That  was  estahlished  by  the 
i^'orjTian  Conquest  and  under  it  was  Accusa.tion  by  Inquest,  and  that 
v/as   tlie  origin  of  our  Gr~nd  Jui^y  or  Coroners  Inquest.. 

vhis   really  was   the  be^-^innln.^  in  my  judgement   of   the     i" 
dea  that     trrinie  waf3   to  be  punished  as   an  offence  against  the  pub- 
lic  instecod  of      an  individual  wron:;. 

This  Normaji  Conquest   also,  broujht  with   the    famous 
Trials  by  BattleK,        If   one  man  thou  ;ht  that  he   had  been  -.vronjed 
by '.another  he   issued   a  charge  and  each  of   the    t.'.fo   men  would  select 
9.  gharnpion,    and  the   two   chanpions  would   fi:>ht   it  out.        The   last 
■recorded  exaiaple  of  that     to  be  found     in  Sn:3land  was   in  1638  and 
yet   every  man  had  a  ri^ht     to   dem5.nd  trial  by  battle  until   1819. 

Now,    the   last   epoch  v/as  TRIAL  3Y  JURY.        now  by  Trial  By 
Jury  I  mean  the    "  Trial  by  jurors.     Now  the   term  jury  you  must 

v^atch  very  closely   :s   it  has  different  meaninj^s   or  is  used  in  differ- 
ent     senses  o,    as  Gr-and  Jury,   Petit  Jury  etc. 

I    am   inclined   to   think  that  Trial     by  Petit  Jury  was  not 
reported  until   about   the  middle    of   the   13th  centruy.     But  if   anyone 
asks  you  the   oricin  of   it,   you  have  but   one  wise   answer  to   rrake   and 
th;:.t   is    "I   do nt Know'.' 


oOo 


II  C  R  I   M  I    IT  A  L        L  A  \7    .  4. 

LECTURE        II. 

"■?e  v/iil    t'lze  up  this    afternoon,   First:    soii:e   ox"   the  .jen- 
ere.l  principals  pcrtainir^^  to    Criminal  Lew,   and   the   i -^ilzo  up  the 

subject  of    «p'=>cific   crines .      So   the  first  f  w  weeks   of   the  semester 
\irill  he   jivo   to   the  discu   oion  of  tje:ierr.l  principles^    and  general 
principles   are    oroadoned  into   four   subdivisions. 

Tie  iirct  is   crimes   defined     and   distinjuished. 

Tho    r-;ocond,   is   conditions   of   CriYnin3lity,    and  by  that 
I    nean  tr-ose   conditions  -^hich  ...ust  exist   or  there  may  be  no   crime. 

Third  is  Parti  "s   to   the   Crime. 

Fourth  is   Clas  ,ifi cation  of   Crime* 

No.7   thooc    are  foar   subjects  which  I   want   to    discuss  in  a 
few  lectures    pjid  the    ^'irst  one  is   an   act  injurious   to   the  public 
^nd  forbidden  by  law  under  pain  of  punishment. 

The  best  definition  in  r,y  judgement   aside  from  t-.e  one 
I   r-av-o  you  is  one  by   a  vory  le-^rned  writor  of   Criminal  Law*   -Fitz. 
Jas  .   oto-aens,    and  he   dc::'GriGe3   it  as'^an  act  forbiddne  by  Lav/  under 
penol ty  of  puni  shment . " 

Thore  is  nothing:  in  the   nature  of   crime  which  deterridnes 
that   a  particular  revon-^eful   act     is    criminal  or  not.      Crimes  mur>t 
be   declared    ;y     law.        Our   Crirflinal  Law     hr.s   pronounced   to  be  moral 
turpitude  what   le-irislature  has   decla.red   to  be    criminal.  Moral 

Turpicfeude  is   almost  universally   an  element   in  crime. 

A  man  purchases   ar>  L  butchers   a  calf  under   four   days 
of   a:::e.     Ho   says   that  he  was    ..-o   told  and   fully  believed  that  the 
calf  was   above   V.zQ      3tatutor;y'  a^e.        The   jury  held  that  if  he    lYilly 
believe  that     the   c'.lf  was   above   the   statutory  ac^e   there   was   no 
criLie.      The   court   held  etherise.      Tnere  maj''  be   a  crime   .vithout  moral 
turpitude. 

Second;      The   crime  must  bo   distiri.-uished  from  a  Tort. 
T-ic   one   is      a  public  wronj   and  t.io  other  is   purely  a  priv-.te   wron^. 
ilow  it  is  true   that   nearly   every  crime  involves   a.  tort  but  most   torts 
do   not   involve   any  crime. 

If   a  man  assaulted   another   seriously  injuring  him  thore 
is  a  public   wron:^,    tne  crime  is   called   assault  aiid  battery, 
'^here  is   also      Civil  «7rong.      The  Civil  v/ron,2  is   Ic.ow  as   trespass., 
and  the  party  ass8.ulted  nir^r   sue   and  recover   daraages. 

At   tho  prf-^sent   time  the    ^oneral  laile  is   that   a  Civil  Act- 
io4  ma^--  be  ^aaintained     at    the   same   time     as   that  of  a  Criminal 
Action  for  the    z-^xae   act.        Larcensy  is   a  crime   which  may  be   punist  • 
ed  by  the  public   as    a  crime,    a.t  tho    sariio  time   the  person  may 
bring   an  ation  to   recover  his  property. 

The  Sn^.   Rule     was   that   a  pvrrion  who  had  been  wron,:*ed 
by   Crime   could  not  brlnq   a  civil  action.        That  rule  has  been  En- 
forced in  some   of  our  st  tes  but  I    think  the    .-rei^ht   of   authority 
is   tiio   other  way. 

See   1   st  of  Bishop  Section  267.     where   tiiis  is 
discussed.  1st  of  Hale's  Pleas   of   the   Crown  372. 

12th  of   tlie  East's  Rep.   409 
15  Mi'^hijan  180. 


II  C  ?.  I    M:  I   TT  A  L        LA  \Y  5, 

6    LTev;  Tuxvon  6  54 
In   :3oir-0   ..trtes   tbis  principlo  is  re;nulated  by   the    ..'tatutes. 
'SoW,    tre  vry   first  element  in  Crinc  is  th'^t  elenont  that 
ta^re  in   no   crime   ■'Without      0'\r?.T  ACT.        ;''ou  \xnder^tand    that   the 
la-'/    103S  not  punj  sh  a  Criminaa  FtLAJin;   OF  UIWD,  uii4g;,'-   it  ia    accompan- 
ied by  some   ov^rt   act.      Vihtout   tao  act    t.i.ero    jan  be   no   crine. 

7  T-^m  i^'opsc    514 

La/.'  Oi    C-^rjjpon  held  ths^t  it  wan   a  principle  of 
ne.tnral     ;;urtioe   thj-t   t!ie   intend   and  act  must  both  occur  to      con- 
;::tl  Lute   a.  criiuo.        No'v   thir-  r.iay  be   illustro.ted*     -^''or   ia.-^"*.   ai-jo. 
The  uinple   po^ijesbion  of   counterfeit   coin  without   -che  intent   to 
par  ;   it  is    a-   jcod   fc   no   crime  at  all  at   the   corrmon  law. 

16   En.-;.   La'v  in"'llquity. 
Bishops  Cri  Inal  Law  204. 
The  overt   act  must  not  be  too  far  removed  from  the 
Criminal  Result,      App ro xl mat e    /^ au 3 e . 

Approxiniate   and  -"^emote   cause   diffors  from  ^mote     cause. 
If  yoa  charge   a  pcrfion  v/ith  wron;;  and  the  effe  ct  ni\.Bt  be  so  closely 
'. ij  unity  thPt  one  must  be  said  to  be   the   cause  of   the   other. 
Now   that  is   illustrated: 

14  Cox  Criminal   Cases  407 
Now,    this   Criiuinal  Int^-nt   of  Overt  Act   to  ^hich  I    refer 
must   concur  in  point  of   time* 

3eel4John3on  294 
Take   for   exanplo   a  larcensy      case,   now,    larcensy  involves 
firjt   a  tre^pans   and   second   a  Crir.ainal   intent  and  deprive.^   the   cmer 
>ds  o'\'r.er3hip     of  his  property,      '"here     ust  be   an  overt   act  and   tto 
criiiiinal  intent*       heio  t//o  must   exist      at   the   sacie  time. 

t  the  time  he  picks   them  up  in- 
after.'  ard  j   con>'?s   to   the   conclus- 
jh  to   keep  end  doeo  not  return 
y  of  larceisy,  because   at    the 
time  of   taking  there-  \ve.3   no   crlrhn  1    intent,    out  if   a  man  picks  up 
a  irallet  of  moaaf.  intends   to   keep     t   even  t.^oajh  he  kjie^^v/ho  the 
owner  was  he   i^:    quilty   of  larcensy 

■^no  next  thing  we  mus-»-   t  .Ire  up  is   an  Attempt  to   Commit 
C rime ,        An  atterpt   is   rn  act  ±r:  p  ^tt   e:-:ecution     of   a  crime . 
See  May'  a  'criminal  Law  Sec.   28. 
All   the  states     bave  v'.ry   vvisely  provided  punlshement 
for  .?..!  attempted   suicide- 

An   attcr;ipt  must   be   such  an  act  a^  is   approximately  con- 
nected •vitl-.   the  final  ille  .aO.  object.       By  this  proposition  v/e    are 
distir<:,'uishir;j  between  preparation  of  the   crime   aj^d   criminal 
att'?mpt-        Of  course,    acts   Icvadinij  up  to   a  crime   are   not  punishiblo 
you  mtaKt  .to   so  far  in   this  act   to   come  close  enough  as   to     be 
one   atop  in  the  exectuion  of     cirine. 

See  30  of  Ala.    380. 
Now,   one  of  the  most  interestin-T:  caseo  that  has  been 
before  our  courts  is   a  Conn,    case  v;here   a  man  was  indited     for 
arson,    and   it   -vas  provod  against  him,  but  all  he  did  was   to  b\^ 
some  matches    ard  keriosene   oil,    and  he  intend  3d  to   set  fire     to 
the  dwelling  but  before  he  got  any  further  they  arrested  him   . 


If  one  finis     ;j;oois 

-nd   : 

tends   to      x'ind   the   o«vner    ,   au. 

•    the: 

ion  that   tho.se  ^cods  are  ^ood 

c-   no" 

them  to   the   cv/ner.     he  is   not 

.;  jUi  1 

,i 


II  C  R  I   ?I  I   IT  A  L        L  A  ''fl  _6. 

Ttie   court  lie  Id.   that   tliat  ■.fas   siniply    a  prepa-i'atiqn  and  the  Law 
don::   not  pu/.ioli  Criminal  Preparation. 

^33   of  En.T.   Law  in  Bquity   540. 
■"he   theory  of  this   principle  is  full   of  diificulties   and 
the   ca3es      are  not   all   of    the   reconcilLle. 

Second:      '-/here,   hcvrever,    the   act  is   a  stop  toward  the 
Crirrdnal  Act  it  is   vmquoGtionaole     in  part   exectuion  of   the   Crirain-* 
al  purpose  an:,  it  in   punisha'^->le   nc   an  attempt. 

Tal:e  for  instance   the  procurin-^   of   an  iraproMsion  of 
a  key   to   another  riians  house  or  shop.       You   can  buy  keys  without 
any  wron^  hut  '-fnen  3''ou  make,   an  impre^rion  to   another  man's 
house     you     are  nee   essiarly     t.'.kinj  part   execution  in  a  Crirrdnal 
JUxeciition. 

Bes-.nett  &  Herd  8.  Lead  Cases 
22  Upper   Ca.    Cos:.   Pl&e,s.    338. 
Third:    -  ^  want   to   iiacu 's  here  ^  propoaiticn  that  has 
"teen  given     a.  cTood  deal  of   trouble  in  the   law  of  Attempts >    -     Attempts 
to   do   impossible   thin^^s.        As   a  jcnaral   rule   the   circi^rnst  xnce;:  nust 
be   such  th'.t   tne   completed        action  results  in  doinj   the   thing 
attoinptedo,    or  a  man  cannot  be  punished* 

8   Carrington  73  6  7 
I'ourth     The   a^ttempt,   however  may  be   criminal   event  hough 
the   coicpleted   offence   is   iinpossible,  where  the     criminal  didn't 
know  of    the  impossibility- 

5   th   Cusliir^g   365 
9th  Allen  274. 
1st   of  Bishop      Sec.    243 
In  Erigland     it  is  h'lld  that   a  person  cannot  be       guilty 
where   t'-.e  ccn.pleted  offenco  was   impossible.      That  is   the  law  of 
3rg,  but  it   is  not   so   in  Mass. 

The   '.veight  of      authority  is  '//ith  the  Mass.  Doctrine. 

—   oOo    — 


Sept.    2   5th,    1902. 


Ill  C  R  I   M  I  U  A  L        L  A  v7  E 

LECTURE     III 

No'v,    at   t.io  last  lecture  I    t.'.iink  I   was  dir.cuosin^;  tue 
suTd    ect  of   Crir.aint.1  Intent,    ?.nd  if  I    reuiember   correctly  I    told  you 
about   tlie  Pick  Pocket   Ca  eso 

Now  ho\7  fcir  is   criininal   solicitation  criminal  intent. 
Solicitation  to   corriit   a  crime  may  be   a  cririn.Tl  attempt   even  though 
the  solicitation  is     refused,        Solicito.tuon  to   cormit  murdrer  would 

be   a  crinlnal  attempt.      Solicitation  to    comit   <?ecret  crimes  is 
not    generally  regarded   as    a  crimincJ.   attempt.      Adultery  is   not   a 
criminal   attempt  wlaen  solicited. 

1st  '.Vliarton  Crim.   Law  179. 

27  til  Pickerinj;  476 

May  on   Crim.   Law  P.    25 
82  of  111  191. 
Now,   those  cr.ses   to  v/'juch  I   have   referred  you  to   clearly  distinguish 
between  solicitation  of  tri3.t  involving  a  breach  of  public      officea 
and   a  secret   crime. 

Griines  munt  be   declared  by  law.      The   state  or  the  nation 
according  to  its    jurisdiction  makes  its   selection  of  those    acts 
which  will  be  puHishible   as   crime,    and  nobody  else.        Pirst  of   all 
note   tl  at     the  ".   G.   Gov.    has  no   corxion  Law  criminal   juris^dnaitton. 
Tli-^re   are  no   conpon  law  crimes   a'^jainst   the  U.    s.   Gov. 
Second   :    St-^t   s  ^enerall  have   coimon  law  criminal  jurisdiction  by 
r'^'^.son  of  their  soveripjnty. 

Conditions  of   Criminality:       r^at  I   mean  by  this  is   there   can  be  no 
crimrs   unless   the   condition  which  I    propose   to   discuss      exist  I   don't 
care  how  jjreat   the    •rronrj. 

Now  the   conditions  of   criminality   ,   the  more  importaAA 
ones   at   le^st,    are   as  follows: 

(a)  Accused  must  have  been  of  competant   a^e . 

(b)  He  must  have  been     acting  voluntarily.      It  must  have 
been  his   act   not  one   forced  upon  him. 

(c)Ho  must  have   sufficient  mental   capacity* 

(d)  He  must  have    acted  with  Criminal  Intent.      That  woul  d 
bliMnate  mistake   and  accident. 

Now,    let  us  consider  these  conditions   in  their  order, 
ilrstr  infancy:      A  child   under  7  years   of   age  is   conclusive  ly 
presumed     incapable   of  comittirvi   crime   and  the  presuctption  is   in- 
disputable at  the   common  law^      A  child  under   seven  years  of  age 
cajinct  be  convicted  of  a   crime     on  his   own  confession, 

1st  of  Hale's  Pleas   to   the   Crown  27 
Between  the   ages   of  /?   and   14   a  child  is  Prim-a  ■'''acie  incapable   ,    that, 
is,     it  was  not   conclusive  pcesumption,   it  is   only  a  preswnption 
that  might  be   rebutted  by  positive   showing  that  the   child  was 
guilty.      There  are   crimes  which  the  infant     if  under  seven  years 
is   conclusive  ly  presumed  to  be  tina:ile  of   comitting. 

At  the   common  law  the  proposition  of  a  female  under   10 


Ill  CRIMINAL       LAW  8. 


years    of  age  is  incape.ble     of   consenting  to  her  own  disLionor 
A     person  wlio  viaiates    a  chafBtity  is  quilty  of  rape,   even  tlioucli  she 
may  have    consentod.«      "^lat    a^e     has  "b-^on  changed  by  the   statutes  of 
most   of  the   states »      A  raale  ~  a  "boy  -»  under  14  years   of  age  was 
incapable   of  cormitting   rape   at  the  cor.Mon  law  ana     those  were 
peculiar  crimes,   hut   they  were   crimes  beyond  doubt <, 

14   Ohio   State  222. 
See  4  Blacks  tone   Con.   23 

(There   it  appears   t:^at   a  girl     13  has  been  burned  for   killing  her 
mistress  c      The   '^irl     was    either   crazy  or  s.^e  did   ;iot  commit  the    crime 

Compulsion  to   commit   a  crime.      A  unavoidable   crime 
is   a  coritradic tion.      '/l:atever  is  unavoidable  is   not  a  crime,    and  w 
whatever  is   a  crime  is   not  inavoidable. 

3   Gushing   13  Ms.   246. 
Precsin:;   necessity  is  no  defence   to   a  crime. 

I  will   c^ll   attention  to   the  Dudley  Case  which  was  one 
where     great  hardships  were  indured.      Three  men  were   cast   away  at 
sea.      They  had  eaten  up  their  food  and  drajik  all  the  water.      One 
of   the   three  was  weaker  than  tho   of. ,er   two   and  the  two   stronger  ones 
came  to    the   conclusion  that   if   anyone  was   to  die   it  would  be   the 
weaker.      They  therefore   kill  him  and      eat  his   fleah,   and  also   drank 
his  blood  thus   savin;   their  lives  until  they  were  pick  up  by  anot  her 
vessel,      '^iiey  were    taken  to  I]ng.    and  indited  on  a  charge   of  murder 
7h.e   defence  was   that  of  pressing  necessity.        The  judge  held  it  to 
be   a  caL-=e  of  murder  but   theykwere   afterward  granted  pardon  by  the 
crown.  15   Cox  Criminal   Cases  624. 

1  Law  Q,uatorly  'Review  51 

The  theory  is   that  pressing  necessity  docs  not  hold  be- 
yond that  of    oelf  defence,    and  that   compulsion  is   no   defence  whera 
the  person  wronged  is  in  a.ny  way  responsible   for  the   conditions. 

It  is  not   treason  for   one   to      join  the    ranks   of  the   enemy 
in  order   to   s  ve  his  ovm.  life. 

1  st  Hussell  66  0. 

Now,    there   is    a  case  where   compulsion  is   a  defence   to 
Crimnality.      The  most  prominent   cases  are   those   of  Husband  &   .Vife» 

^irst  in  many  crimes   the  wife  is   exempt  from  punishment 
"by  reason  of   the  presumed   coertion  of   the  husband.        She  is   presumed 
to  be  under  his  domtiation  and  as  a  general  rule  for  a  crime   commit-- 
ted  in  his  presence   she  is   not   regard  d  as    responsible.        The  pre- 
sumption however,   may  be   rebutted  if  the  evidence  may  be   shown 
to  prove  it  was  against   the  husband  will  or  -.vishes   and  that   the 
wife  was   the  prime   factor  in  the    crime. 

55   Conn  39?   38  Amer.    744? 
13  Allen   560  Mass  Reps. 
13  R.   I  . 
12  Mass.    287.   ■ 

If  you   study  these    c?ses  you  will  find     this   peculiar  con- 
dition of   things,    that  in  prosecution     for  the  illegal  sale   of 
intoxica.ting  liquors    ,     The   defence  of    compulsion  made   by  the 
wife  is  more    coranon  than  any  other   crime    • 


Ill  C  R  I   M  I   N  A  L        L  A  'v7  9. 

I    do  not  kiiow  o.   many  c  .ses  where   tlae  defence,    coercion  has  pre»- 
■7-a.iled. 

Second  propoc^ition  under  compulsion  is    coverture.    Cover- 
ture is   no   t   a  defence  to   all   Crimea*        It  is   no   defence  to   a 
charge   of   treason  or  murder.      Tl^e  authorities   are  in  confusion 
rer^arding     coverture   as   a  defence  in  case  oi"   rohbery.      Some  include 
this  while  others   omit  it.        It  is  a  defence     to  misdeatoors    and 
the  low     crimes. 

i    st  Greenleaf   on  Evidence   28* 

1st  of  Bishop   of  Married  -i^omen  42 
132  Mass   267. 

Marri'id  women  at   the   conmon  law  were   not  held  responsihle 
in  many  co.ses     for  crime,   at   the    £^a^■ie   time  you  are  aware   of   the  fact 
that  our  lej;islature3  have  pc'.soed  laws  in  which  a  great  degree  of 
responsiblity  falls  upon     the  women*  In  this    connection  you 

may    ar,    veil  note      that  Married   ."/omen's  Act  .vhich  pertains   to  her 
capacity  and  hor  porsonal   responsibility  does  not  as   a  rule   affect 
the  proposition  upon  wliich--j;  have  been  discussir^, 

;Ve  will  next  take  up  the  defence  offered  as  ment.il  incap- 
acity. 

oOo 


Oct.   3rd,   1902. 


IV  CRIMINALLAW  10. 

LECTURE  IV. 


At   the   close  oT   fhe  l-'^st  lecture  we  were  diBcussin^ 
conditions   of   criminality,    and  we  learned  first  that  tlie  person 
must  be   competent   as   to    oce. 

Second:    That  the  act  must  "be  done  ■\roluntarily. 

We  come  now,    to   the  third  condition  of   criminality,    and 
that  is  mental  incapacity  or     frequently  coJ.lod  INSANITY. 

Ins^.nlty     i3    a  .^^eneral   term  and  includes  various  phases 
of  mental  derangement.        It  is  what  is  kno'wn  in  the  law  as  mental 
unsoundness,  hut   that  will  hardly  answer  "because   there   are  too  many 
mentally  ■imseimd  not  insane. 

The  typos   of  insanity   are  generally  classified  into  two 
clatises . 

1  Totally  Insanity. 

2.   Partial  Insaiiity. 

Totally  insanity  is   of  three   kinds: 

(a)   Idiocy.  (b)  Lunacy  (c)  Madness, 

Each  one  has   a  different  meaning  in  the   law. 

Slrst:    The  idiot  is   a  fool  from  his  nativity  and  never 
had  any  leucid  interests.      Of   course,   he  ha»  no   criminal  responsib. 
ility. 

1st  Russel   on  Criraes   36 

To   show  how  severely  he  must  be  afflicted  inorder 
to  be   an  idiot  in  En'gland  I   quote     tiie   followins   :    (Eale)"He  knows 
how  to   count   twenty's   or  tell  his   own  age  or  father  or  mother,  but 
if  he  knows  his   letter  and   can   recxi  by  instructions   of   another  he 
is  no  idiot.    "      Of  course,   such  a  cane   as  that  rarely  comes  before 
our  modern  courts. 

Second:    A  Lunatic    is   one   afflicted  v/ith  dem.entia  only 
at   certain  periods  and  havin:;   intervales   of  reasoning.     Durinj  his 
frenzy,   the   lunatic   is  irresponsible     for   crime   at  other  times  he 
is  responsible. 

THird:    Permanent   dementia  or  madness  is  that  condition  of 
the  mind     which  excludes      rep.soninj.      It  is   a  permanent   loss   of  mind 
throujh  disease  or   accident.        It  i.i  however,    a  loo^j   of  mind   and  such 
a  p  rson     c^.nnot  commit  n   crime.     He  may  kill   a  nan  but  that  kill- 
in-:  is  not  murder.        Tlioir  cases   seldom  come  before  our  courts. 

The  next   ca.se  of  ins  .nity  ia  what  is   called  partial  in- 
s^'^ity.      Partir>l.  ins^^nity  is   a  qualified  derangement  of   the  mental 
faculties  and  cO'  oo  frequently  before  our  courts. 

First  partial  insanity  is     what   i3    knovm  as  monomaniar- 
madnes.:  from  one  idea  -  an  uncontrollable   impulse  to   coujidt   a  parti 
cular  act-as  to  other  thin:s  he  may  be  perfectly  sane. 

'^he  law  do^s  not   reco::jnize   an  irresponsible  impulse  un- 
less  it  is  an  insane  impulse-the  prodi-'.ct   of   a  diseased  mind. 
Partial   ins   nity  that  we  see  paraded  before  oui-  courts   that   is  not 
the  product   of   a  diseased  mind  has  no  place   as  defence  of  criminal 
chari^  es . 

46   Iowa  68. 


IV.  C  R  I   M  I    N  A  L        L  A  ^7  11. 

Yeilding     to   insane  impulses   or  I   misfit  better  say  irrtst- 
ible  impulses. 

May's    Criminal  Law  15. 

Another  form  of  partial  insanity  is  wliat  i;3  know  as  Klept- 
omania,   in  p   ain  En'jlisli  -  it  is   an  insane  desire  to  steal. 
A  person  may  ha,ve   an  insa.ne  idea   to  steal   a  particular  tiling   and  yet 
be  perfectly  sane  upon  evortliinj   el=!eo 

10  Texas   520 
2  Parker   's   Criminal   Reps,   243. 

In  the  Park'^r  c.se  a  wonoan  liad  an  insc-jie  desire  to 
steal  ber  friends  shoes,  ajid  she  was  indited  for  larceny.  The 
defnece  was  kleptomania.  The  crime  muat  have  been  the  result  of 
mental  disorder  or  the  monomajriia  is  no  defence.  That  is  to  say 
to  prove  one  innocent  of  a  charge  on  this  ground  the  act  which 
is  charged  aj^lnst  the  accused  must  appear  to  h.ive  been  the  pro- 
duct  of  the  monomania. 

The  MOTIVE     for   tho   crime  is   the  best  evid<5nce   of   sanity 
where  you   are   in  doubt,    smd  the    defence   of  insanity  is  presented 
-     ■    if  you  find  that  there  was  present  a  motive  for  the    crime  the 
accused  is   entitled  to  the   presujaption  that  he   acted     from  sane 
rather   than   insane   impCutsos.     If   a  man  acts  as    a  same  r.an  would 
un.ler  the  same   circumstances  insanity  is   a  poor  defence,    and  it 
hardly  worth  while     to  inquire  whether  he  had  a  diseased  mind. 

The  next  one  of  partial  insanity  and  perhaps   the  most  im- 
portant  one  is  -vhat  is  know  as   an  insane  delusion.        Some   of   the 
most  import -nt   ce-ses   in  the  history  of  criminal  jurisprudence  have 
arisen  out  of     defence  of  insane  delusion. 

AN  INS/aNE  delusion  is    a     firm  belief  in  the   existence 
of  ui  fact  ".vhich  is  -teholly  imaginary.        You  can  easily  see  how  a 
person  from  a  diseased  mind  can  firmly  believe  in  a  fact  which  was 
really  no   fact  at   all,    and  if  he  acted   on   that  delusion  and   commit- 
ted a   crime  it  would  not  be   a  crime. 

7  Met calf   500 

1  Bennett  b-  Herd  95 

2  La.vson's  Def.   158 

27  Howells   State  Trials  122 
Another   one  which  is  perhaps  ha,d  some   effect,    at  least, 
in   chr.njin:j  the  English  view  of   Criminal  Responsibility  is  whttt  is 
kno'.vn  as  McNau^hton. 

10  Federal  Rep.   177    . 
The  Hadfield  Case.      This   case  was  where  Hadfield  who 
had  been  eni'^ed  in  battle  with  Lord  'v7ellinjton  at  the  time   of 
the  battle  of  'Jaterloo   and  he  had  been  seriously  wounded  in   three 
or  four  places.  He   came  home  and  w  as  hi^^hly   respected  by 

everybody,  but  he   thought  he  had  jot   to   lie    for   the  world   and  in 
order  to  accomplish  this  he  must  kill     Geo.      the  Third.     He  fired 
a  revolver  at  the  king  which  is  trer.son  and   that  is  followed  by   death 
Tills  case     was   a  test  of  criminal  responsibility. 

Erskin  Speeches. 
The  McNau^hton  case  is   a  c:ise  where     the    defendant  at- 


IV  CRIMINALLAW  12. 


tempted  to     kill  the  private  secretary  of  Sir  Robt.   Peal.     He  was 
tried  and  acquitted  on  tho  ground  of  ins  nity.      That  mp.de  the 
house  of  Lords  indijn^nt   and.  they  in-ormod  the    judges  to   submit 
to   them  questions  a.3   to  what  ',vas   a  true   test  oi    responsibility 
There  ^reve  t'ro   tests:    Right  distinguished  f rom  wronj  in     ^Q^i^reJl 
and  ri  "ht     dir,tin -uishf^d   from  v/ron  ;  in   a  particular  act. 
The    true   tost  v/as   ri.jht  from  wrons  m   reference  to   a  particular  act 
and   t'oat  is     the  test    /hich  is  now     enerilly   r-'coj;nized. 

Uow  fron  thsi   case  we  may  draw  some  jeneral  conclusions. 
(A)  Delusion  must  be   so  mo  thin;  more   thaji  an  eronous 
conelusion  from  disputa-ble  facts.      In  other  words,   inoane  delusion 
is  nover  a  result  of  false  reasoning   and  reflection. 

(B^Rational  opinions   re^jardirii   questions   of  law, 
politics   or   relijion  are  not  insane  delusions.        That  is  why  Guitit 
was  hanged. 

(C)  Delusion  must  be     result   of  disease.     Pt  must 
be  such  tha.t  if  the  imasinary  facts   existed  the   act   co.nmitted  would. 
be  jus tifi able o 
b  7  Metcalf   506. 

"  l^o"r,    such  an  insane  delusion  as  we  have  been  di3cu,.5inj 

is   a  ;^ood  defence  to   a  criminal  charge. 

The  next  form  of   qualified  insjjiity  is  what  is   known  as 
irri stable  impiklse. 

An  i  -ri  -.ta-ble  impulse  is  not   convertable  vvith  passionate 
propensities . 

77  P  nn  205. 
At   the  Game   time  you  are    aware   that  the   exist in'^     of  those 
conditions     may  reduce   a  crime  from  niurder  to  manslaughter,  but 
that  is  not--thc  kind  of  a  defence  you  would  like  to  v/in  on. 


\ 


—  oOo   — 

,  October  9,1902. 


"V  CRIMINALLAW  13, 

L'XTUEIE      V. 

MORAL  ins^m'rf.      That   is   another  form  of  partial  insanity.     Now 
noral  ins-:'nity  in   a  deran;-emcnt   of  the  moral  functions  while  the 
intellect  ual  faculties   remain  unimpaired.        The  theory 

that  man  cixn  be  diseased  mcraD.l^    and  perfect      sound  intellectually 
is   absurd   according  to  ny  unJerstandiug,    otherwise  most   of  us  might 
he  ranked  as   insane. 

Insanity  is   a  product   (    As  I   have   told  you  before)   of  a 
diseeaed  mind   and     there  is  no   such  thin^  as   moral  insejiity,   at  all 
events  you  may  note  it  is  not  received  as   a  defence  to   a  criminal 
charge 

41  Iowa  232 

12   Crim.   Law  Magazine  p. 6 

The  Guitot  case  brought  about  important  changes  in  this 
question  fjid  if  you  want  to  .^ct  at  a  discussion  of  this  case  see 
No.   American  Heview  for  Jejiuary  1882. 

Some  people     ave  held  or   talked  a";out  moral  inaai.ity  as   t 
thou^Tli  it    .'vus   a  defence   to   a  criminal  char^je. 

For  contrary       4   of  Metcalf   (kentucty)   207. 

Mo  re  J.   ±nc,^::]lty  is  nothin:^  more   than  moral  depravity. 

EMOTIONAL  INoZ-J^HTY.      This  is   a  tercporary  mental  dis- 
turbance  arisinj   from  violent  excitement  of  the  emotions   or  passions. 
Tills  defence  has   often  been   offered  before   our  courts  but  it  is  no* 
now  accepted  as  a  defence  to  a  criminal  charge. 
I  38  Mich.    482. 

"  Tlie  theory  of  the  courts  is     this;    A  man  has   not   a  ri^jht 

to    say   that  his   emotions  have  run  away  'JTlth  him.     It  is   only  when 
disease   ta/^kles  him. 

Now   the  question  com  ;s  what   is  a   true   test  of  criminal 
responsibility. 

Tliore  is   first,   the   ^''ild  Beast  Test.      Now,   that  was  the 
earliest  test  known  to    the  English  Law.        I    don't  know  that  it 
was  ever  erJ'orced  in  the  U.   S.  It  is    tliis:    That  a  man  in  order 

to  be    exempt  from  punishment  on  tlie  plea  of  mental  de  pravity  must 
be   a  man  totally  depraved  of  his  mental  capacity. 

16  Howells  State  Trials  176. 

The  second  test  was   that   employed  after  the  wild  beast  test 
passed   out  of  existence.      Test  of  Right  and  Wrong.  In  jeneral 

that  is   the  power  to  distin^jiiish  ri^ht  from  wrong  in  the  abstract. 
Now,   these  two   tests   are  abolished  or  overlooked  by  courts  of  Both 
EiTg.    ajid  tl',is    country. 

The  Third  test  is  one  most    ^.enerally  applied.      It  is  Rigjit 
and  Wronrj  Test  with  reference  to   a  particular   act   committed. 
Tiiat  is  the  McNau^hton  Case. 

The  Fourth  Test  is  what     is   known     as  Power  of  Control 
Test.  I   don't  think  this  test  has  .gained  any  foot  hold  so   thati 

in  a  ccntrovated  case  it  would  bo  recognized  as  a  test. 

81  Al?,  572. 

It  was  s?ld  in  that   case   and   this   was  the   law  laid  do'Jm" 
the   accused  must   not  have  only  knowledge  of  rijht  and  wronj  but 
power  to  choose  between   rlj:ht  cjad  wrong,    or  he  is  not  responsible. 


V  C  ^  I  M  I   N  A  L  L  A  '^  14. 

"No'v,    some   conclusions  upon  this  subject  of  insanity  when 
relied  upon   ?^  defence  to  crime  is  a  mixed  question  of  la.'?  and  fr.ct 

Second:   It  is  a  perfect  defence  to  the  accusation  of  crime 
i.C  the   accused  at  the  tine     he  coiiimitted  t   e  act  was  afflicted 
with  a  mental  disease,   which  v/as   the  cause  of   the  crime   cornmittod, 

Tliird;   \Th.en  it    appears   tiiat  iut  for   this  mental  disease 
the  act  would  not  have  been  coniiiatted  that  is  a  complete  defence 
for  the   crime » 

Fourths   No  form  of  moro.l  or    emotional  insanity  is  defence 
ajainst   crlminol   charge    . 
The  next  defence   to   crime  is  DEUNKEIIESS. 

lo   VoSiunStary  intoxication     producin/:;  even  temporary  madness 
is   no  defence  to    a  criminal   charjOc        That  is  true   as  a  general 
rule  but  I    shall  make  rxme  modification., 

18  N.  Ytt  9 
1?  I^cliijan  9 
Nor  does   it   asgrejate  defence. 
38  111  615, 
Now  the   ro/sons  for   the   rjle. 

a.  Public  Inebriety  i3   in  itself  unlawfiil  and  one  who 
indulges  in  it  must  be  held  for  the  consoquences. 

b.  Drunkeness  may  reduce   crime  of  liiurder  from  first  to 
second  degree. 

104  U.    S,  6  31 
75  Penn.   403 
Por   contrary  37  Mo      332. 

c.  Drunkeness  would  of  itself     reduce  crime  of  murder 

to  mejislau:';hter.     Drunkeness  may  be   introduced  in  evidence     of  cir 
cu  ist-'jice  bearinr^  on  the  subject,     .of  adequate  provocation    jdrunken- 
ess  cannot  make  an  adequate  provocation  inadequate  or  visa  versa. 

18  N.  Y.  p  19 

3   of  Gray    (Mass)   463. 
44  Penn  55. 

d.  .Then  the  jist   of   the  crime  is   the  existence  of  his 
specific     intent  drunkeness  m-dir  be   complete  defence  because   it  pre- 
cludes  fonuation  of   such  specific   intent. 

19  Mich.   401 

2  Lee    (Tenn)   401 
51  Iowa  369 
Drunkeneuo  is  complete  defence  of  burglary,    elso,   assault 
with  intont    to   rape  where   the  rape  was  not  carried  out. 

47  Michijeji  334. 
It  is    also,   a  sood  defence  for  the   pa-^sing;  of   counterfiet 


money. 

elootion. 


14  Ohio   555. 
It   is  c<di   to     be  a  gooi  defence  for  votings   t-^irice   at   an 


29   Cal  678. 
Contrrry  21  Minn  22. 

e.   As    a     .;;eneral  rule  evidence   of   drmikeness   of  the 
a-. cused   is   received     in  evidence   as  part  of  the   res  gesta. 

6   Park-^r   Criminal   Gases   209. 


CRIMINAL        LAW  15, 


2.  Involuntary  drunkeness  produced  tr-rovoh  the   fraud  of 
another  may  be  a  coiirplete  defonce  to  criniee 

104  Illc   605c 

3.  An  organic  mento-l  disease  such  as  delirium  even  thou^li 
occasioned  "by  excessive  dilnking  •.  if  it   overthrows  the  .;ense  of 
ri'jht    ?-nd  wrong  is   a  .•jood  defence, 

CRIMIITAL  IlTT^irr.      Of   course,    all  we  have  "been  stating 
re:;a:-dinc'   e.i^B,  mental  capacity  etc.,   bear  upon     criminal  intent,   but 
criminal  intent  is      a  crirainDJ.  purpose  or  resolve. 

97  Mass.    567. 

Tlu  s  inuj.t  be  distin^mshod     .  from  belief  and  motive. 

Criminal  Intent  is   either  particular  or     general. 

There  must  be  what  is   colled   a  guilty  tiind  or  there  is 
no    crime   such  aa  is  produced  hy  general     criminal  intent. 

Second,  ^'rom  the   commisGion  of  the   completed   offence 
the   jeneral  intent  to  produce  the   result  is  presumed. 

Malevolence  in  such  a  c -i.se  amounts     to   criminal  intent. 
Because  Jiow  are  you  goin;  to   tell  what   a  man's  intentions   are     when 
he   says   one   tMn;;   and  does   another, 

(a)   General  malevolence  or  wickedness  may  be  no  more   than 
carelessness   or  negligence  and  yet  be  criminal.  E'er  example: 

One  may  be  convicted  of  majislau  ;hter  who  makes   reckless  use  of 
fire   arms  whereby  one   is  hilled, 

2   C  &  K.    (Enj.)    230. 

3o     There    are   crimes   at  the  common  law  and  in  the  stat. 
utes  which  call  for   a  particular  intent.  Now,   in  such  cases   the 

responsibility  of   that  particular  intont   is  essential  to    the   crime. 
ITo   other  intent  however  wicked   can  takes  it  place,  and  the   intent 
rail 3 1  be  proved. 

19  Mich.    401 

The  most   coriiaon  of     particular     intent  is    assault. 
33  Mich.    300 

«.^  oOo 

October  10th,1902, 


"VI  C  R  I   M  I   N     A  L        L  A  W   .  16 

LECTURE      VI. 

CRT'^TIITAL  raST/'Ki;   MD  1(RKR.'-11CZ   O'j?     lAJ  AMD  PACTi 

Of  cour   e,   you  can  ea,sily  see  tlop.t  r?.  ni-tnice    of  f^ct 
or   ijnor  .nee  of   law  ir.ay  involve   the   question  as  to  v/liether  or 
not   ,  wron;  done  \v:is  with  any  crimina].  intent. 

(a)   Ignorance   of  the  law  excuses   no  nan,    is   fundamental 
a,nd  -applies   to  t'.ie   law  o_    crimes.     However     honestly  one  may 
beleive   tli.t   a  statute  he  violat   s  wa.-.  unconstitutional  is   no  de~ 
fence  or    oxcune  for  his  violation  of   the   statute. 

98  U.    G.    145. 
This   is   the  Monnon  case  v/herethey  believed  that  the 
sti-itute  ai:;^ainr. t  Llonnons   or  Mon.ionism  was  not    .iccordin;  to  the 
conotitiition  of  the  U.    3.    ,    and   therefore,   even  though..'  they  rar.de 
a  raint'.  .e  they   ou^ht  not  to  ".^e  punished  for     they  had  no-     criminal 
intent.      The  3upre...e  court  hell  that  they  were  responsible. 

103  U.    3.    304 
Advice  of  council   that   3t   tutcs   are  unconstitutionpJ. 
is  no   excuse. 

11  Slatchford  U.    S.   200 
57  Barbour  6  55 
The  Bl"-tch^ord   c  'se    'a-  t   at   of   Suseji  3.   Anthony. 
Proof  of  plvice  of   council  uny  ho'Tevor,  be   r.ceived  to 
sho^v  t:    t   the   act     was  not  'willful. 

9  '.let calf  268 
3  McLean  573 
Mistiik:.-    of  fact  producin;:  untrue   conclusion,   as   one's 
le_,al  rijht3    ,   may  deprive   an   'ct   of  criminality.      Tlie  mistake 
of  law  io   as   a  rule  no  defence. 

One   c:innot  be   convicted  of  larceny  who   tzkos  .;oods   of 
■^jiot:.er   -ith  "  ona  fide   claim  of  ri.iits.      In  other   vords   ,   what  a 
por.;on   do   s,    in  claim  of   ri  jht  which  the  jury  find  is  bon  a  fxde 
will  not   amount   to    a  crininal  act, 

36  Ilichijan  306 
1st   Gushing-  5 
23   Queen's  Bench  Div.   168. 
After  seven  years   absence   ,    a  man  io   suppo.-ed   to  be  dead 
and  his  estate  r.  y  be  administered  upon  by  the  statutes   of  most 

e  "^  "3  "^  i"^  a 

Suppose  that  a  wcman  has   lost  her  husband  and  he  has 
not  b^on  hea^d  o-   for   seven  years,    can   she  marry  without  beins 

indited   of  bi^priyS  4.   <  -   +t  « 

In  t'^o   last   nened   oase   the  holdin-:;  was   taat  i±    tae 
husband  had  b-on   absent  for  ze-rn  ye.-rs   they  wife  mi-ht  marry 
and  f^e  husband  was  bona  fide  believed   to   bo    dead. 

contrary  7  lie t calf  472. 

11  Allen  23 
Ist  Bishop     303  note  A 


■^^^        '  CRIMINAL  L  A  '.7  17, 

A  mnor  it  hr.z  'oeen  held  c    ni-:ot  be    convicted  of  un- 
la^vfully  votin-  ■■■'Jhon  it  vms  by  pj.ct.'^Jce  of  his  a.->-e. 

23   Ala.    SO'^ 
One  v/a03e  wron.-^ful   act   sijns   anotliers  na.  e   to    :.  note 
beleivin-  "  e  has   au-^:ority     cnnot  be  convicted  of  perjury. 

7    Carrin   ton  p.    204. 
As   a  -^enerrl     principle  there   can  be  no  crime    yhere    • 
there  is     no   Crirainal  Intent. 

In  statutory  crimes   there  ra£:y  bo  a  crime  irrespective 
lof   any  criminal  intent.        In  other  v/ords   in  statutory  crimes   there 
may  be   -  man  puninh.cd   o."   crir^lnality  when  there  is  utter  ignor~ 
ance     of  fact. 

39  Mi  Chi  •:?,n  200 
Contrary     52  Mich.    579 
108  Mass   441 
97  Mas  3      567 

'JTlien  a  nan  violates  police   regulations  he  violates  them 
at  his   peril. 

Contrary  to  above     48   Ind.    289. 
55   Ala  16  . 

Felony  at  the    Cor- ion  Low  ,   criminal  int:.nt  is   an  es- 
sentieJ.     injredient   and  ignorance  of  fact   or  law     that  shows 
that  there  -vas   no   crirdnal  intent  is   a  complete  def  nee,  but  in 
the  rdnor  statutory  cr,so3      i.jno rr.nc e   of  f  :-ct   is  no    excuse. 
C0..TCLUSI0ITS   OF  IGrJO?A}TC;^   OF  FACT: 

(a)  Wnen  fron  the  l3,w  it  appears  that  the  evil  intent 
is  ejn.  e:;:. o:.tial  in  ,rodient  then  i^nor-ncc  of  fact  is  a  defence, 
because  if  evil  intent  is  e/sentiaJ.  ingredient  then  evidence  of 
fact   shows  no   evil   intent, 

(b)  7/liere   a  stftute  r.ialces    an   act     indi table  irrespective 
of  guilty  knowlod'j:e     that  ignorEince  of  fact  is  no   e,-;cuse. 

(c)  The  quccticn  W.. ether  crir.inal  int'  nt  is  an  essent- 
ial ingredient     of    .".  cri-ne  is  a  legislative     question. 

(d)  Alien  the  state  inflicts    a  punishment  for  knowingly 
coirjoittin:  an  act   then  guilty  knov/led-^e  is   on  essential  in:;redi€nt 
of   the   criniS. 

15  Grey  195 
'    30  Ohio   264 
(E)      In   the  higher  oifences(    and   thin  is   the   law  of 
ju  1  "c   Cooley)   the  corinisi'ion  of  -.'■hich    '       msy  involve     sacrifice 
of   life   or  personal   liberty,    as   a  gcn^r-.l  rule,    crimnal  int -nt 
is    an  e.  sential  and  i   nor  -nee  of   fact  is    an   e.:cuse,    as   agoinst 
tho.e  hi -her  crimes  but  in  the  lo'ver  penal  offences      arising  from 
violation  of  police  regulations  guilty  Imowledge  is  not  gener- 
ally reaulred.        They  pur.i.-h  the   act   they  do   not  inquire   into 
int-nt    ". 

Now,    thi";  v/hole   subject   is   somewhat  ably  discussed  in 
13   Criminal  Law  Mag.   839. 

October  17,1902. 
" ./-/ 


VII.  C   B    I   'T  I   N  A  L     LAW.  IS. 

L  T   C   T  U  n  ^      VII. 
oCo 

At    tiae    close   of   tLe  last   lecture  we  were  discussing  tLe 
subject   of  Grioiinal  Intent.      We  had  called  your  attention  to   t.ic 
fact   ti^a.t   tliere  ^'d;i;ht   be  crime  witliout  any   crindiial  intent,    par- 
ticularly wiiere   the   oeroon  was   ouiiished  for  the  violELtion  ox    san- 
itary  c'Jid  police    re-^.ulr,tions  ,   but   at   the    coimion  le.v/  criaiirial 
intent  was  an   essential   in;^redient   of   t.ie    cririe. 

Y/e  will   take  uo    the   subject   of   two  or  more   Intents, 
that  is   an   act    conu-iitted  'nnere   tue  perpetrator  of   ti.e  act  had   in 
mind    t7/o  or  more   intents,    either  one  of  .which  was   crimincl.      Now 
there   are    souie   crimes  where   two    or  more   intents   arc   essentir^.l   or 
the   crime  -las   not   oeea  committed.      Larceny  is   never   coouitted  ex- 
cept when   there  has  'ueen  two   intent3--one   of   trespass,    and   the 
other   is   t.he  intent   to   steal   or   to   convert   tiie  property  to   tue 
use   of   the  wron..^-   doer.      Tiiese  two  points  must   concur   in  point  of 
time.      The   saiiio   is   true   in   the   cri:;ie  of  bur^^lary.      T-;ere  must  be 
the  intent   of   trespass  and  tne  intent   to   commit   a  felonj''. 

Y.l-iere   a  double   intent   exists    (V/liere   there   is  r   double 
intent  and  each   one   involves  an  iiidictable   offense.) 

Suppose   a  person  adjiinisters   poison  .  for   the  accomplish- 
ment  of  the  crime   of    seduction  or   rape —   l-Tl.e   criminal   intent 
of   administering   the   o^l-zon  snd   2-The   crime  of   seduction  or  rape. 
The  prosecution  may   indict  on   either   offense. 

6  m  .dx.  ,    15 
1  Garrinc,ton  &.  Paine  658. 

¥/e  will  now  talce  up  another  part   of   tne  lav  of  intent 
and   that   is   what   is  known  as   ti.e  unintended  results.      As   a  ■••eneral 
rule  if  a  man  means   one   tnin^  aaid  does   anoti.er  he  is    responsible 
for   the  wron^j  done.      A  man  who   combats   a   crime  will  not,   as   a 
general  rule,    be  permitted  to   say  I    intended  a.:oti:er. 

1  Bishop   327 

Vrnere   one   intends   to   commit  a   crime,   but  by  accident 
or  mistake  an  unintended  result  follows,    tlie  lew  transfers   tiie 
unle-wful  intent   to   the   result.      (Bisiiop   says   Gy  v/ay  of  ^a^jic) 
Now  if  A  fires   at  E,    intendin.rj  to  kill  B,    and  misses   his  mark   iind 
kills    C,    he   is        >^uilty  of   the  murder   of  C. 

35  "^nc.    Law  &.  "Plquity,    567 

You   cari  easily   see   that   there  would  be  no  s'ifety  in   the 
law  if   that  kind  of   an   excuse  v/ere   permitted. 


C    R    I    :••    I    'T    A   L         LAW  /7 

VII  o^'o 

"e-i  II    E   St    P.le    3   0      fre    Ci-own 

The    ^-5l":inda:.t    in  t'^i=:   case    intended  to    com-itt    cbe    crime 
oj"  r^pe.       Evidence    showe-'    c]ear]y  t'njt   he    intende"   to   rare    the 
P'osecutrsr   in   the    case.      The   womsn  paid  him  a   s^'Jir.  of  money    to 
desist.       -'3   WvS  p.-osec  :ted  fo'    r'-^bberv. 

'tpi    is   not    ,e]iav3.-l    of   c;'iminal    resp''ns :  bi  lity  bscaMse 
t    e    act    is    far   in   exces«   of  what   he   intended. 

^  -'ich  1- 

If   A   says   t->   B  I    ■vilJ    -ive    you    .25.00   if   --o'l  ^vil]    -ive 
C    a   goo  ^    lirki'^.r;;    D   accepts    the   prop    sition  anr'    does  pecform  his 
duty,    but   to   excess   and   ro   such   :n   extent    that      e   kills   the   party 
assailed.      He    is   ^ui]ty   of  murder. 

The   act    intended  ne  5d  not   b'j    crimin-::!,    but   it  must    be 
/rial a   in   se    not    mevely  malum  pr'ohibi t'^n. 

I    ?!i  shop    3'51 

M- v/  I    have    said   that    where        man   intends  one   wrong    and 
does   another  he    is    responsible    for   the    wro -.g   done.      That    is   n^-^t 
true  where    the   particular   intent    is   the    -ri  st    of    the   ctime. 

Ss   59    Ala.       1 

At    the   com  on    lav;   a  man  had    the    ri.'^ht   to    set    sp'-ing   ^uns 
to   pr~c3ct    his   house.      Theve    is    le-^islstion  against    such  a  practi- 
ce  now  in  many    states.       Anoti^er  practice   v/3  s   that   of   set    ing   dog 
spea   s   in   the    ground   so    th?t    if   'logs    vent    chasing  hares   on  g-'ound 
reserved  for   g^^me    the    dog  wo';.Id  probably   c'.tch   a   spear  insvea"   of 
the   ha   e . 

69   re  163 

fi   wrong  doer   is   responsible    criminally   for   the   natural 
consequences   of   :^is    act    but   no:    for   the   possible    consequences. 

3'-'   ''ich         503 
7    Allen        541    Cass) 

How   circumstances  may    s -ow    thi;t    ;  he   injui-y    (homicide 
for    instance)    ¥/3  ~  pui'ely  acci''''ental. 

The    .Levitt    case    found   in  ^ook '  s   cases    53'3   is  v;  •y   in- 
tere    ting.      Was  where    a   servant    had   her   l-idy   companion  in  the   house 
v/ith   hei  ,    and  iipon  iiearin"^   a  noise    about    the  house    ■"'ot     '.lightened 
and  called   to   the    family  up    stair-s.      The   lady   friend    Wis    forbidi-fSen 
by  the    family   to   be    in   their   house    and   she    v;'^  s   hid   in   the    closet 
by   the    servant     -irl.      The  wife   discoverer!    a  noise    in   th.e    closet 
:  nd   ci-ied   out    "here    at  e    they   w'^.o    would   undo   us"    ?t    t'tis   m  ment 
the    husb-md   appeared  and  killed   the   girl   in   the   closet.      "-.=   w-.s 
indicteo    for   m.u...der.  The    courcs   held  th.t    under   the    circ-orn- 

stances   he  was  not    guilty  of  any    -rime    whatsoever,    not    even  man- 
slaughter. 


C    R    I    '■    I    ■"   A   L        L   A  W 

VII  JO 

W3    v'.-.w  cornd    tvT    an "^i: her   i.-~r-3(3i.3nt ,    -*r\ri   tr-j    ]--t    on^, 
ill   con-'''i':iops   o.i    crininality   arri  tiit    is  *-!ALIGE.      T}^.is    is    .n   im- 
X0;-i3.nt   element    in  crime.      Tne    q^jsstion   arisen    at   once    -   '''^'.t   is 
it,?^     Til ; .  ,i  may    b?    nlio^    -vi't.hT^t   moti\''e    and  on   th.3   '".ther  hari'^ 
rne^a    a  e   m^   y  oiTensa-   w:nich  ai  j   icunisheci  only  when  malice   i« 
present  3  \  ■  urder    in   t-^e    ri.;3i    cle-^rej    is   nc    a  crime  urJe.^s   conm- 
itted  malici  :usly.      i'.'alic?    is    thct    st  ■t3    m'   the   tnincl  w'-ich  yiev- 
mit-    one    -O   the    comrriisr.ion  or'   sn  un]r.-/fal   ac  r.    'Without    l-ir;-.!    jus- 
tii'icstion.      ^''a3ice    inv'->]ve-    a  ---lenta]    :-    -T.e.       1 1    is    ■''   r  erenl 
from   in"^eni.       It    i'-.volv?s    -r    wickaclnass. 

7]     rach        2G7 

I-    i3   on    ^h:.-   whole    -■    '''xcke':?    intent    co    do      a  m.iurv. 

54    "i  c  ■'        20  5      It    i  '^   the    v/i  c  k  a  d   Vc  a-ne   o  f 
rni nd   ts'iat    th'j    la";  p^.ini  shes. 

34  '■\,  T.     2w   410 

■'alice    is    •"■:^nerTlly    'vive"    -^s   oi'  t".vo  j/inds   in   the   law  but 
i    sh:ll   give    you   ibree: 

l-Express   malice,     f<^hown   by    void's    an'    con'-"' .'ct.  ) 
2-I;;ipliaii   malice,    (    ''hAt    --ay   ba   implied    f.-om  thj 

circ'Jmst '^nces   oT    the    act    commit    ea.  ) 
3-I;Idliee    af  o-.-:jthO'.33ht ,     'Thi.-   i  ^.   the    in~t-^di)nt    that 
dist  i  i,f^"i  shes   'aur^'3er    from  rsan  .si  -  Ji^ht  ?r.  ) 

35  ^■lch        1-3 

•']\i    e   rr.:.iy  be    '.n-er,    hat-.-ed   and    -eve  ice   without    le;T?i 
;  a  a  1  i  c  e    :T  t'  c  r  )  i  Yic  ur;  h  t . 

PAFITI-^^    TO    C:vI:E: 

'!■■'■  i   rartv  accused  must    be    a   natural,  pe  cson.       A 
corporation  which  is   eniir-jly   an    artificial   person   c^^n  ot    b? 
guilty  of   a   crime,    but    criminal    proce --dinj-s   may    hi    brou"  it    against 
a   cocpor ^tio-"..         Crime    bel^n-Ts    to    thi    3ub-.-t  .vntive    Is'-'   an-i    crimin- 
al  procee dur"e    to    t he    ". d j  e c  1 1  v e    1  ;■  ■■'; . 

I    Bishop    r-ec    417 

The   parties    to   cMme   ai-.5    eit^e'-    1-Pri -cipal ,    <":.'•   2-acc- 
assories.      The   principal    is   the   one    vho    is    actually  .)r   c^nst  "act- 
ive J ;;   p^'^sent    at    the    time   the    crime   is    com-;dtted    and  a4ds   in   its 
execution.      A  principal    in   t^  >    .ir:-t    degree   is   he   who    is  the    act- 
0:-    and  pet-pet .  ator   of  the    de    d.        'is    actual   presence    is  mt   nec- 
essary  for  ther3    are    crimes   in  which  r.is    actual   presence   is   n^/t 
necessary.      li'  he   acts    th.-ou~h   a  guilty   a'- -nt   he    is   n^t   p'incipal 
in   the    first   de.'^/.ei. 

5   Parke --'s    Crim.    Acts    120 
30   t-Teorgia   757.  Oct.    23-1902 

--0--0--O--0--O--O--0-- 


D    R    I    '•■■   I    T,T    a    T         I;    A   w 
VIII  ___ono---  ^/ 

"'0'^  :.he    cl    .^e    or   l-h.3    r.st    lecc'-u'a,    I    think  I   wss 

di  sc-assi;-5   Pri  \ci;'>a:' s   to    ^i.  i--3.      I    rarl  di-icussed    v^-n -m;   we    call 
t!T3  principal    in  t:"-^    .I'irsi,    ■''-^'^■'^:e.      I    -■  vvv   take   v.p    ihe   P'  incipal 
in   tbe    s-^cond  ds^-ea. 

Ti'-3    P--i.icipal    in   t\i3    second   ci3-;-ed    is   one    vjno    is  p.te- 
sent    ^idin;?    ^nd    ■,  D3t  i  i-:-    ^,he    cii-ie.      T'-.e    ."eal    distinction  be- 
t'/een  ^-'.-incipal    in   the   fii'^jc    decree     nd     P'/incip-l    i-i   the    sec- 
ond   de;];t''e)    is   that   tha   one   is    th^    acror  and   t'^e    oilne\    is   the 
ira'^^sdiat  ,'    3a'-ist.-^t.      '-'-3   nran>,    be    cons  rue  ^ivjly   but    '-ct    actua- 
lly pirs.n't.       '  o\v   tpis    dist  i'^.ction   b.Jt-vean  p.^incipal    i--'    t'-ie    first 
c>j;;;.-e-3      nd  principal    in    ..  hr    sec  ond  ^  eTe  i    1.=-.   ox    value    on!'/   in   a 
scientixic    ■■t^'-dpoint .       It,    is   not    oi'   -^ry   ■^ra-.t    •••racrxc    1   '--alus 
bee    use    ihe   punis"i-;;:^ent    foi-    Lhe  pL-incipal   in  the    first    derre  :    anri 
the  p-iz-'cipal    in   ths    se'-^ondd  e'rree    is  u -liforrrly   the    same. 

Th-i  test  to  'icitevinine  'viiethe.-  oiie  is  a  p- incipal  oc  an 
acces.';o  y  is  whethei'  be  is  so  r.i-z-  is  ■:o  render  his  help  if  nei:-- 
e  s  s  -3 1'  y . 

9   Piekex-in.-:  490 

■'■'yie  •"  i    one    ".v  tc.hes    for    the  purpose    of  givi-'-   informat- 
i"n  m  cc^se   of    ri.nifTe>    of  detection  he   i  s  ivlncipal   in   the    second 
de  •  r e  e   a^n  d  no  t    an   ac  c  e  =  so  r  y . 

26   Ind.         495 

0'-  vom  One  detains  anothei-  (say  the  owner  t  r"  t'-ie  pro- 
pe-cy)    wr^ile   t've   othev    steals   it.    see: 

i:;  Ohio    ^ti..e    148 

To    the   con^'-airy,    ho'^'ever,    o£   that   prop:^^ition  of  de- 
t;iinin-'T   the    owner-  of  p'--op?rty   se  ■: 

III    Cox's    C-r  m.    O^^-ses    85 

In   -.'-.is    case    tha    defendant    Tiiilocked   the    door   and  v;ent 
aw-y,    another   came    and   stole    the    ^0'''-s.      I    think   that    the   defen- 
dant   th.-^.t    WMit    avvay   took    I -'le      "-vne-      ■£  thj    .50   d?   oat    >.  idinc   so 
that   he   would   net    be    too    nenr    vh.en   '^^.e    theft    ■•■/ ^s   conr-itted.      It 
•  as  hel'"    th^jt    ..he    defsid?:!    was   not    a  principal   in   the    second 
degree    but    wa-    an   accessory. 

9    Pickering;  49 G 
in  "  477 

10  "  497 

Read     he   rourde      of   Capt.     Joseph  '^'.n-iite    found  in  Vol   VI 
of  V/ebscet-'s    speeches   41. 

Accessories   ^re    tnose    'fiho   are    '"^t   present   actually  or 
const  ruct  iVily  at      hj    tinie    the   acc-   w- s    comrdtted.      AIJ    principals 

in   the   first    or   second  d  e^-'^es  mu-t    be   present    actually  or    con- 
strjctively.      Accessories    ai^e    concerne,''    in   the   crine   and  its 
comTTiis   ion   be  for.:'    or   after    the    f»>ci    but    they   ai-e   not   present 
act '13.1  ly  or    const I'uc lively. 


G    R    I    f     I    ■  •    A   L        LAW  o  2 

'^■III  Th'3    di '■  ti.ic'i-ior.   hitwe^n  princips''''   in  a   crxra-i    an.rl 

acc'^s'O'iJs    is   clubfly   importar.t    in  proceeriur  i. 

An   accaas'^ry   bat'ora    the    Tact    is   one   w;;o38    mil    con- 
tributes   to    tha  felony  comriiit    ei    by   ::.antbe;'      s  p --i'-.cipal,    whil.j 
himself   i  r3    too    f^^i    aw   y   to    b-3   of    iny   assi  stenc  i. 

1    ""ishcp   '^ec.67:3 

As    a  raneral    c-uJa    one   v.'ho    commands   counsel   or   p'-'oc.'res 
me   commission  of  a   felony   is   ealie-i    an  accesso-y   b::jfor3   the   :fHtK. 
f  .■•  c  t . 

The'-e   a/-^    soi  3   offense;?;    o;at    do   noi:    admit    of   accessories 
There    can   be    "O   accessrii  js   before    the    fact    zo   tne   criins    of  hijh 
trea-:on,    al]    p "  v^ieipat  in^   ave    re^a.-de:"    ^s  principals.      It    is 
said   also   th:t    tlier^    can    be    fo   accesso':-ie?,    before  t'le    fact    to   the 
crime   of  man   si  v.uf:]-itsi'. 

40   .^nn.    I3-.V    ':   Eq-uty    556 

There   tr.ay    be    accessori  i  s  after    -he    facL    in  man   slaurrh- 
te.-   but   not    before      he    fac    .      In  mi  sdeme mors   all   engajed  in  the 
com:ri  ssio--.  of   ".he   offense    ar ;   principal^   and  not    accessories. 
In  other   words,    \  here    are   no    accessaries   in  the    lightet"   offense_s. 

12    Ohio    <^tate    214  "^ 

I     'ishop  636 

It    is    sometimes    said  th.-t   petit    larceny  does   not    admit 
of   accessa.'ies   e^'en   tnoii;~h  it    be    a   f   lony   by   statute. 

3   -hll   iJ.Y.       39  5 

An   acces"ary   is    criminally    i'isponsible    f o  •.-  all   the   p-o- 
bable    consequences   of  the   unlawful   act    committed. 

40  .'mn     77 

If   the   p:-incipal    committ    anothe.:-   and    disti?-;ct    offense 
not    conte.'-'p]  .xted  in  the   original    d    si£:n  the    accessa'-y   is  not    re- 
sponsible. 

96   II"!  73 

26   Mich        112 

Accessary  af t  jr   the    J"^act    is   one   wh";   kno^vin^   that    a  fel- 
ony has    be 3X1   com^dt    ed,    aids    the    felon   to   escape   punishment.      It 
is   necessary,     (a)    that    th^    accessary   should   tes  have   notice    that 
the    felon  he    assists   has   committed   a  felony,    ^--.d   the    felon  must 
have    been   fully    completed,     (b)    It    is  neccessa.-y   that    the    assis- 
tance   jiven   should   be    giv.n   in  order    to   prevent    the    felons   app- 
rehension  to   RSTi^-i'sri  Si-'   trial    or  punishment.       ^o    you    see   there 
aie   various    steps   where   one   ••.ay    step    in   as   accesary  after   the 
fact.      Renderin      assi st-^/ice    to    a  felon   by  givin:^   him   somethinf'^ 
to    eat    or   3   place    to    sleep,    even  you  know    the   felon  has   been 
committed,    does   not   make    one    -guilty   as   accessary,    but    you   let   him 


I 


CRI':i:^AL        LAV; 

VIII  oOo —  2  ? 

;.ave    2   hO(se    to    r'':!n  a^vav   wlih  and   yov.  -.vill    be    couni^^i    -^s    an   acc- 
tssarj    after   f.ie    fact.      ''er^  ectin'^,   to   prosacut-?   a   i'-lo-   0/    sulT- 
i    in  J   him   lo    escapa    6.0 -a.   o.oi   ^r.ak^   on  3    an   access'^^ry  al'tar  the 
ract.      There   must    be,    in  '■>t  .lec   v;ords,    some   pe   Eonal   assistance 
r-^ndei  e-1    t?ie    fejon   ds    b"   conGer^3in~  hi"^-.  oc    fui  ri  shi-^';  hira  mei^ns 
ci    escape.      Now  compoundin"   a   f  ;lony  or   misprision  0  ■•.'   felony   c;re 
not    such  acts   as    rindjf   one    -n   assessary   ai'ter   the   fact.         The 
pracv-ioal   value    bc:cween  these    is,    ]-A':    the    coniinon   lew   an  aco.es:;- 
ary   bej'ori    the    fact    in  o  le    county    (Washin.'; -o  - )    to    a  crime    comm- 
it* ed  in  an-ther   ooimty    (Wame)    could  /ot    bi   convicted   in  eixhsi- 
county.       T,i-,at    is  not    the-    rule   nov:. 

01:".   k's   Crim.    Proce  'dure    15 
2- The    sccesax'y  after   the    fact    in   renderin.-'*  -.ssi  stance 
m?v  com.;at.    a   .^ubst  .nCive   offense,    that    is,    an   independent    off- 
ense.        i-'iThere   on-^    aid"    s   f  Oon   by   affectinh  his    rescue   or   es- 
cape   (up    .n;iin7   a   saw   to    ■:    iail    fciea'.ei-)    '-.e    is    both,    sn   access- 
a-.-y   after    v. '-e    f:'-;ct    and   is   r.l so    (^'ilty   of   jail   breakinfc. 

I    Li  sViOp      597 
4  5   Indiana   4G3 
4-A  'A'ife    cannot    be    ar.   ac.  jssai'-y   after   the    fact    to   her 
hus'.;anri    as   pi.  incipal.       (Tnat    is    sa^cl   to  ^be    on  the    theory   th-n   it 
is    the    duty  or   t'le    wif.-    t"    protect    the   h    sband.  )      A  husband  may 
be    an  accessary  aftei-   th^^    feet    to   his  wife    es  pri:':cipai. 


Accomplices   in.olude    all    who   pa   ticipate   in  a  crime    as 
principa'    in   t'-.e   fi  "i-'.    or    ^-ecovid  de"   ee;    or  as   a-j  cessa.-ies   befori 
or   after    tre    hec-.  116      ass   345 

At    Che   c.omi--<'>n   law  an   aroessary   before    or   after    '.he    fact 
could   be    tried    with  his  princip?.  •    or   aft^r    the   princip    Is   convict- 
io.'i,    but    not    before..  44    Ind  214 

4  6    "'hie    qtute    45^. 

&.t    the    conracn   1;":V.',    if   by    reason  of  death   or    e-cape,    the 
princip..,!    '.v";.u   not    sentenced   the   accessary   could  never   be    tried. 

I    j^ishop    068 

This   hss    been  modified    by   statute    in  most   all    of    the 
st..:;tes.      It    is   r.Q    exc  .^se    f^r  a    criaiinal    char.:Te    to    s- y   that   he   was 
commanded    to   d  .'•   it    by  his  principal   or   his  master.      A  mast-"  may 
show  that    what    is    done    by      is   servant   v/as   done    ag  :inst    his   comm- 
andinT   and  wishe?.      on  that    -subject    see: 

4   rJray    (Mass)    16 
14  '^tray  "        14  .  Oct.    ?.4-l0O2. 

--0 — ^..  --0--0---0--0--0-- 


CRIMINAL        LAW 

IX  ■  L  E   C   T   U   R   E      IX  24 

oOo 

At    the   last    lacturs    \,s  had  disc    ssed  parties   to    crime, 
principals   and   accessaries,    and  ha6   made    so;:-'e    rerr.arks   about 
master  and    servant. 

We   will   now   take   up   the   cJ  assification  of   crimes,    in 
other  words   how   crimes   are   classified.      The  mere    classification  of 
crime   at    the   common   law  was   based  upon  their  moral   turpitude. 
There    is   just    one    classification   that   has   been  recognized   for  ov:r 
two    centuries   and  that    is: 

1-Treason, 

2-Felony, 

3-Misdemeanor. 
I -At    the   common   law  Treason  was  not    distinctly   defined. 
Parliment    from  time   to    time   en':imerated   acts   to   be   known   as    trea- 
son and  punished   them  with  death.      There   were    about    160  offenses 
that   were   known  as   treasonable   offenses   in  Blackstone's   time. 
There    is  no   common   law   treason   in  the   United   States,    there   is 
political    treason,    but   no    common  law   treason.      The   United  Stat- 
es  nonstitution  has    defined  what    treason  ags-inst    the  government 
is,    and   each   state   has   also    defined   what    treason   against    the 
state    is« 

II-A  felony  at    the    common  law   was   such  a   crime   as  was 
punishable    by   forfeiture   of   the    felons   estate.      This   does   not 
help   us  very  much  becaiase    there   i  s  no    crime   in  the   United   Stat- 
es   that   permits   a   forfeiture.      A  felony   at    the   common  law   w==.s 
usually   but   not    always  punishable   with  death.  A  good  many  of 

the    states  have   given  a  definition  of  the    term  felony  while 
other   states   have   not. 

(a)  Offenses  p^-inishable    by   death  or   imprision- 
ment   in  the   states  prison  are   usually  regarded  as   felonies.      The 
ignominy  of   being    confined  in   a   state   prison  is    sufficient    to 
brand  the   offense    with  the    tei'm  felony   and  the   man  who   committs 
it   is   called  a   felon. 

10   Mich      169 

(b)  V/here    the    statute   is   silont    on   the    subject 
the    common   law   is   appealed   to    and   as   a  general  rule  what   was   a 
felony  at    the   common  law  is  regarded  as   a   felony   in   the   United 
States,    even   though    the  ptonisliment   may  be   dif^'erent. 

III-A  misprision  is  any    crime    less   than  a   felony.      Some- 
times  it    is    said  that    the    term  crime   cannot    be   properly  appliad 
to  misprision. 


■"/■J 


IX  C    R   I  K:  I    N   A   L        L  A   W  25 

A  misd^neanor   is  p-unishabla    by    jail    sentenco.      \^/here 
tVie   lowest    degree   of  punishment    that    can   be   inflicted  is   state 
prison  it    is   a   felony;    an'i  v/hei-e    the   highest    degre-i   of  punish- 
ment   th-^.t   can   be   inflicted  is    fine   or   jail    sentence   it    is    a  mis- 
demeanor. 
SPECI  M^IC    GRIMES. 


We   have    finishei""    the   general  parts    that    we    started 
out    to   discuss   and   we   will   now  t;  he   up   the    specific   crimes   which 
rest   upon  these   general   parts:      ^-ote    the   following   classifi- 
cation  of  crimes: 

1-Offenses   against    Soverignty, 
2-Offenses   against   persons, 
3-Offanses   against   property, 
4-Offenses   ag"inst   public    justice, 
S-Offenses   against   public   pence, 
6-Offenses   against   morals    and   religeon. 
We    shall    discuss   during   the   remainder   of  the    semester 
tlie   crimes   in  this   order. 
Of fens 3 s   Against    The   Soverignty: 

There    ari    offenses   against    the   law  of  nations   such  as 
piracy,    etc,    that    ise    shall   not    consider. 

1-Treason, 
2-Mi  spri  sion, 
3-Sedition. 
Treason   is   the   highest    crime   known  to   the    law.      It 
involves   criminal   renunciation  of  allegiance    to   th3    sov3;ign 
power,    but    that    reniinciation  must    1:3    displayed   in   a  certain 
way   or   it    is   not    treasc::.      At    the   common   law   treason  was   divided 
into,    a-IIigh  treason  and,    b-Petit    treason.  You  have    frequent- 

ly heard   the    expi^ession   "Guilty  of  High  Treason.  "      In   this   coun- 
try  all   treason  is   high  treason.      '"e   have   no   petit    treason. 
Petit    treason  was   a   breach  of   domestic    faith,    and  it    no   longer 
exists   in  England  or    this    coiontry. 

Blackstone   enijimerates    seven   different   kinds   of  high 
treason,    but    we   have   only  two  kinds   of  high   treason  and  they 
are    enumerated   by  the   constitution  of  the   United   States: 

(a)  Levying  war   against   the  United  States, 

(b)  Adhering   to   their   enemies   and   giving 
them  aid   and  comfort. 

It    is   also   req^iifed   by  the    constitution  of   the   United 
States   that   there  must    be   two   witnesses    to    some    overt    act   or 
confession  in  open  court. 

V/hat    is   levying  war?     The   term  is  not   easily  defined. 


IX  C  R  I  :;  I  N  A  L    L  A  W  26 

It  IS  resistancs  to  the  soverign  state,  through  force  of  arms, 
by  a  body  of  man  assembled  f^-  the  purpose  of  executing  treas- 
onable design.   That  definition  comes  from  the  celebrated  Aaron 
Burr  case,  which  never  reached  the  supreme  court  of  the  United 
States. 

II  Dallas  Fed.  Rep.  Cases 
I  Payne  265 

IV  Ci'anch  U.S.  Sup.  Court  65 

I  &  II  Causa  Celebrae  (Trxal  of  Aa-on  Burr) 

II  Wallace  Jr.  200 

The  s''bject  of  treason  against  the  scate  has  never 
come  before  any  state  court  as  I  know  of. 

The  cases  in  II  Dallas  in  1794  are  cases  which  arose 
out  of  an  insurrection  in  Va  over  moonshiners  who  were  bound  to 
make  liquoi.'  in  the  mountains  without  paying  taxes  to  the  govern- 
ment.  The  U.S.  troops  went  to  enforce  the  law  and  they  were  met 
with  armed  resistance.   Quite  a  r/omber  of  persons  on  both  sidjs 
were  killed.   They  were  tried  in  the  lower  federal  court  and  all 
found  -uilty  of  treason,  but  before  it  ev-;r  got  to  the  Supreme 
Court  the  President  pardoned  them  all  and  that  was  the  last  known 
of  these  cases. 

Aaron  Burr  was  one  of  the  brightest  lawyers  that  was 
in  ^^ew  York  -^ity  and  you  will  r^jmembar  that  he  killed  Alexander 
Hamilton  in  a  dual.   But  he  set  out  on  another  mission  and  I 
have  not  the  sli'jhtest  doubt  in  my  mind  but  that  it  was  his 
intention  to  subvert  the  government.   He  with  several  other  prom- 
inent men  attempted  to  purchase  territory  in  Xasic  Louisana,  and 
was  going  to  start  up  a  little  republic  of  his  own.   V/hile  he  was 
in  Louisana  layin~  his  plans  they  were  gathering  together  an 
army  of  men  and  ammunition  on  an  island  near  the  head  of  the 
Ohio  river.   The  government  becai-ne  aware  of  his  undertakings  and 
proceeded  to  sirrest  him.   His  arrest  and  the  experiences  he  had 
in  being  taken  from  Louisana  down  through  Alabama  and  up  to  the 
District  of  Columbia  where  he  was  tried  is  richer  than  any  novel 
that  I  have  ever  read.   He  was  tried  there  on  the  charge  of  Treason 
The  question  became  a  political  one  and  Sure  had  numerous  friends. 
The  historical  discussion  can  be  found  in  the  two  voliimes  I 
referred  you  to  and  is  very  interesting  indeed. 

From  the  above  cases  we  draw  the  following  conclus- 
ions: 

(a)  A  conspiracy  to  ? evy  war  or  subvert  the  government 
by  force  of  arms  is  not  treason.    ("or  you  see  it  is  not  the 
conspiracy  of  levying  war  but  the  actual  lev;ing.   There  must 
be,  in  other  words,  an  actual  assembly  of  men  for  the  purpose 
of  executing  a  treasonable  design. 


iX  .  C   p.   I    J.!   I    ^^   A  L        L   A  W  27 

» 

(b)A  tr3asonab:e    '3esign  is  not    suliicient,      Thore   must 
be    some    overt    act    in  execation  of   tint   design.       (    In  that    Aaron 
Burr   case    there    W;!s   the   g-athering   together   of  men  with  ai-^s   and 
ammimition,    but    there   was  no   overt    act.) 

(c)    A  disti-i.ction   between   a  tre'isonable    and  a  riotous 
assembla^fre   of  men  is    in   the   intent.      I;'   the  object    to    be   accom- 
plished is  of  a  public    naturs   and  looks   to   overthrow  the   govern- 
ment   it    is   Treason.      I    mean  a  dii'ict    attempt    to   overthrow    the 
government,    that   is,    to   put    the    President   out    and  put    somebody 
else    in.         Armed    L-esistance    to   the   law   is  not   Treason,      That   is 
enough  on   the    si.bjact    of   levying  war. 

There   is  another  kind  of  Treason  under    thie   constitution 
and   that    is   -   Adherin/"-   to   th^   enemies   and  giving  them  aid  and 
comfort.      This  means   active   assistance.      IVords   are  not    sufficient 
t"!  make   a  m^.n  a  traitor.      You  must    give    the    enemy   aid   and  comfort 
in   some    s-Jbstantial   v/ay.      The   enemies  must    be    foreign  enemies 
and  not  merely  rebel    subjects. 

II    Abbot    U.S.    3G4 
f.'ay's   nrim.    Lav/   212 

During   the   oivil   war   giving   aid   and   comfort    to   them 
v/us  only  giving   aid   and    comfort    to   rebel   subjects   and  not    for- 
eign  enemies. 

The    st =te    constitutions  provide   for  treason  against 
the    state   and   enemies   of  the  United  "tates   are   not    enemies   against 
the    state. 

11   Johnson   549 
Misprision  of  Treason. 

Misprision  of  Tr'^ason   is   the    concealment   of  felons  or 
the   failure    to  make   it   knovvn  to    the    government    by  one   having 
knowledge   of    the    facts.      As    n.  general   rule   a  person  may  know 
that   a  crime   has   been  committed   and  he   may  kejp    still   about    it 
and  say  nothing  without    being  guilty  of   anytViinf:,    but    that   is  not 
true   in  treason.      Misprision  is    the   offense   of  knowing  that    tre- 
ason has   been  committed  and   saying  notliing   about   it.      In  Mis- 
prision the   ordinary  rules   of    evidence   except    in  regard   to    the 
tvjo   witenesses.      The    rule   of    evidenee    that    there  must    be    two 
witnesses   for   the    same   overt    act    does  not    apply   to  Misprision  of 
Treason. 
seditiom: 

At    the   common   law  sedition  was   the   unlawful   disturbance 
tranquility  of   the   state    by  insurrection  or  movement   not    amotint- 
ing   to   treason.      Sedition  at    the   common   law  was  punished  very 
severly.      It    was    sometimes  worse    to    say   something   wrong  against 
the   government    thaJi  to   do    something  wrong. 

October    30-1902. 


0    R    I    "    I    V    A    T.         L    A   W 

X  L  E   C    T    U   R   E        X  23 

oOo 

At    V.\-d    I'jst    lecture   we    sdid   all    that   we   had  to    say  with 
refereiice    to   offsnses   ag:inst    ':he    Soveri-^nty.       I    have   now   come    to 
the   next    sub-d.ivi  sionwhich  sre: 
OFFEMSE*^    AC-AIiT'-T    T^-TE   PER'^^OrT: 

This    subject    comes    closer    home    and   will   occupy   our    time 
for    saver -.1    lecti^res.      The   greatest    olTease    against    the   person 
is   involved)    in  Criminal    Homicide. 

HO.VICTDE   is    I  he   killinf-  of  a  human  being,    and   it   may 
be    felonious   or   it   m.ay  not    be.       It    is  of   three  kinds: 

1-Felonious   Homicide, 
2- Excusable   Homicide, 
3-Justifyable   "omicide. 
Thus    thre  -    kinds   are   recognized   by   all   the    Jurists   at 
the   present    time.       Rrac-tton  gave    12  different   kinds   of  homicide 
but    3   is   enough   for   us. 

Felonious   Homicide    is   the   unlav/ful   killing  of   a  h-'jman 
Being.      Of   course    in  discussing  homicide   I    ass'ome    that    all 
the    .'onditions   of  criminality,    which   we   have    been  discussing, 
exist.      Because   unles-    they  do   exist    the/'e   would   be   no    fel- 
onious  homicide. 
An   insane   person  c-^nnot    be   guilty   of  homicide.      There    ar i    certain 
propositions    vith     efer^nce    to   homicide   that    I   must   discuss   be- 
fore   taking   up   the    two   or    tnree    dif  erent   kinds. 

1-There   must    be    cleai    proof  of  Corpus   Delicti.     (That 
term  meiv  i/i:^   n-'thing  more   than   the' body  of  the   wrong   and  is    a   tenn 
thit    is    applied   almost    exclusively  to    felonious  homicide,    but 
it    is    true   in   larson.       Before    you    can  convict    a  man  of   being  a 
thief  you  must    pr      e    th-^t    soraething  has   been    stolen   and  n't    lost. 
The    first    thing   to   prove    in   a   felonious  homicide   is  the   corpus 
delicti.      This,    of    course,    involves   the  pr'^ving  of   an  overt    act 
execute'-"'    through  criminal    a^-encies.      One    should  not    be   convicted 
of  ho.v.icide   until    the   fact    has    been  proved    thfe.  a  homicide   has 
been  com/ltted  or    at    l.i    at    the    body  has   been   found    dead.       Som.e 
COtirts  hold   that    the   bo.'y  must    be   found   before   one    can   be    con- 
victe:\    especially   m   the    states   wher;    hanging   is   the   penalty. 

II    Hale's   Pie OS   of   tha    Crown  290 
18  N.Y.       179 
TTow  in  tliis  New  York   case    the    defandant    was   char-ed 
with  mui-djring   his   child.      The    c':uld   and  m.othier  had   bean  missing 
for   a   long   time,    and   unde^^    suspicious   c  ircijmst-dnces.      There   was 
no    evidence    of   the   killing,    and  they  could  not    find  either   one 


X  C    R   I    ?.:    I    IT   A   .L        L   A  V  29 

of    ch'^rn.      F-varyb"icly  Wi3   csrt  :iin  that    Lhe    accused  hLid  killed  and 
disposed  of   both   of  them.      It    wis  h'ild  that   ha   could  not    be   con- 
victed,   nor    can.  a  man   be    convicted    mtho-'it    clear  rroof  of  the 
r;orp\5.3   Delicti   upon  his   ovm   confession. 

5  Mo.       526 

2-Thei-i   must    be    the  killing   of  a   person   in  being   in 
oi'der   that    a   homicide   may   be    felonious.      Tlnis   applies   only   to 
those    cases   v.here   there   has   been  the   killing  of  an  unborn   child. 
The    child,    it    is    said,    is   not    in   being   in   the    sense   of    the   law 
until   It    is    freo    from   its  m-ther's   body.      The   e   may  be    dn  abort- 
ion punished  criminally   but    it    is  not   murder   until    it    is   free 
from  its  mother's   body. 

4  3   lov/a   519 

3-That    d-3ath  must    t-vke   plac  d   within  a   year  and   a   day 
fr'om  the   inflicting   of   the   vr-iind.       i    think   this   is   true    in  every 
st-^te    in   the   union.       If  a  man  v«'as    ?.ssault^jd   the    accused  mi^ht    be 
guilty  oi'   xiJ    assault    -.vith  intent    to   murder,    but    if  he    is   con- 
victed of  m.uider   the   vo  ly   asc^ault  3d  must    die   within   a   year    and 
a  day  from  the   day   of   assault    and   the   day  on  which  the   injury   is 
inflicted  is       ickoned    a~   the    first    day   of   the   crime.      The  mm-der 
w-'S  not    completed   until   the  man  had  died.      Death  is  no   pa^.  t    to 
the    crime    bec-:iuse    it    is   no    crime    tc    die,    and  the   day  the   injury 
is   inflicted   is   the    day   Vie    crime    ia   inflicted. 

6  Calif.     o37 

4-The   injury  must    be    the    cause    of   the   death  and   -ve   mean 
by   that    Caiisa   Cansantis.  In    the    law  of  Torts   your    attention 

will,    0      has    been   called  to    the    subject    oi'  proximate    and  remote 
cause.      That    does   not    apyjy   in  'Criminal    Law  except    to    a  limit. 'd 
extent.      It    is   eno'-X'^h   if   t>i=   wound   that   w^is   inflicted   was   the 
cause   of   t>-e    cause. 

(a)    Fiie.'e    a   wound    dan::e   o us   to    life   has    been  in- 
flicted  and  denth   follows,    it    is  no   defense    that    the    deceased 
did  not    take    care   of  himself. 

44    Conn   557 

And    it    is   no    defense    that    uhe    deceased  did  not    submit 
to    a    sui-gical    operation. 

II    VIeade   5:  Ryan   (Sng)    351 

It    is   no    definse    that    the   immediate    cause   of  his   death 
was    tne   ne-Tlectfullnes--   of  his   p'lysician. 

39   Mich      356 

In  this  last  case  the  theory  was  that  the  accused  had 
oe  ;::i  killed  by  his  physician  ^  nd  that  before  he  had  an  opportun- 
ity to  die  from,  the  wound  inflicted  by  the  accused  the  physician 
came  :-.lon~  and  put  an  end  to  hj.  s  life,  but  it  was  no  defense. 


X  G    R   I    ;/    I    M   A   L        I    A  W  30 

Tliei's    j.re    cases,    hov/evsr,    fnst   hava   held    differently  where    the 
deceased   carna   to   his   deifu  thro";.'h    the   int  atvemtion  of  othei* 
causes    such  as    the   neglect  i'u]  Iness   oi'   his  physician: 

10    Bush    (Ky)    495 

"    Allen  IT'^S 

15    "ox'    Cfxrn.  1/4 
{b)\'s'>ie-'e    a   sarious   v/oarid,    thoMgh  not    fatal   and  app- 
arently  net    danfT3''*ou3   to   'numan   life,    is   inflicted   and  de■.^th  foll- 
ows  as   the   result    of  ne^li^ent    i. '^eatr.. ent    the   accused   is  guilty 
of   felonious   hcmi'^ide. 

?-8   A-.-k.       155 
This   is   a   fiase    th'"it    T    re^rard   a?    a  very  e-'-crerne   case. 
The    deceased   h-id   been   slit    in   the    lefv    side   of  -th'j    abdomen  viith 
a  knife    cuttin*^   a   gash  a   fev;   inches   lon.^,    but   not    very   deep. 
It   was    apparently  not    -i   n^'erous,    but   he   vm-^.   a  very   filthy  man  and 
the   filth  was    such  that    gan^^rene    resulted   from  his  ne.f^lect    to 
take  proper    ca^e   of  his    vwunds.      The    inflammation  and   c;an'^j'en3 
re   ulted   in  peritonitis,    and    the   Court    held   that    the   man  who 
made    the    slash  in  the    side   could  not   make    that    en  excuse    and  was 
guilty  of   felonious   homicide.      The    better   rule   in  my   jud;jment   is 
in   the    responsibility   of   the   accused   and  does   not    depend  on 
whether   the   wound   inflicted  was   apparently  danfje  rous   to   human 
life   or  not.  The    question   is    )    V/as    the  wound  inflicted   with 

felonious    intent? 

5  .    Tones    (n.  C.  )    420 
We    come   now  io   consider   eevei'al   kinds   of  felonious 
homicides   and   there    are    two   kind?.: 

1 -Murder, 

2-Mansl aught er 
Murder   is   a  very   difficult    term  to   difine.      Mow  what 
was  murder   in  one   century  was  not    in   another,    and  what   was   not 
murder   in  one   century   is  murder    in   the   next.      Murder   in  the    early 
common   law  involved  a   secret   killing.         The   present    idea   is   that 
the  killing  must    be   with  malice    aforethoup;ht.  A  definition 

<Tiven  at,    5  Cushinfr   289   th^t   murder   is   the   iinlawful   killing  of 
a  human  being  with  malice    a.orethou.f^ht    axpres-^   or   implied. 

(a)  ).'ialice    ni'oretho  .ijnt    involves  premeditation.      The 
t  ;rm  cf   course    defines   itself. 

(b)  There   need   be   no   direct    evidence   of  inalice   afore- 
thought   but    the    fact    of   its   exi stance   may   be   implied   from  the 
circumstances. 

The    state   has   the   burden  oi'  proof,    not    only   that    the 
killing   was    felonious,    but    that    it   was   a  malicious  killing,    and 


X  C  R  I  f  I  ^;  A  L    L  A  W  31 

if  it  fails  in  eitliar  the  accused  can'-'.ot  be  convictsd. 

5o  >'.y.  164 
9  Metcaif  93 

(d)  Malice  afoi'sthou'^ht  does  not  require  any  (Consider- 
able lapse  of  tine  between  the  intent  and  the  act. 

43  Calif.  314 

You   ar-e    all    familiar   with   ihe    f^ct    that    we   h.ave   murder 
in   the    first    and   second    degrees.      What    is    the    difference    between 
these    -"le'^rees'?      There   w^jre   no    de-jrees   at    the   common   law,    it   was 
either  murder  or  mansl  augliter.       By   the    statutes   of  most    states, 
however,    murde:/    is   divided   into    first    and   second  de/^ra  j;s.      The 
ori'Un   of   this   division  is   in   Pen   sylvania. 

Murder    in  the    first    degre      is  murder  perpetrated   by 
means   of  poison,    lyirifr   in  wait   or   by   any  other  kind  of  wilfull, 
deliberate    and  premediated  killing     or   in   an   attempt    to    com-.itt 
Arson,    Rape,    Robbery  or   Burglai^y.      Now  every    state    in   the   Union 
has    these    tivo    kinds   of  inuraer;    Those   which  are   premeditated   and 
those    '.vhich  are    comndtted  while    atiempting  to   perpetrate    somoother 
high  crime.      All   .^ther  kinds   of  rnurdei-   are   murder   in   the    second 
degree.      As   a  matier   of   fact    in   the   trial   when   the    question  is 
submitted   to   t?ie    jury  where    there    are    t^/o    degrees   they  will  make 
it    first    or    second  according   to    the   enormity  of   the    crime    before 
them   and  not    by  any   such   technical   rule    as    the   Court   may   lay   down. 

Punishment    for  murder   in  Michigan  and   some   of  the   other 
states,    in   the   first    degree    is   imprisonment    for   life;    and  for   the 
second    degree   is   imprisonment    for   life   or   any   nunib&r   of  years.      In 
some    states,    however,    the   punishment   to   be    inflicted  is   left    to 
the   jury.      That    is    true   in  Illinois. 

1-A   specific    int-jnt    to   tafee    life    is   not   essential    to 
murder   in   the    first    degree. 

2-In   deliberate    and  premeditated  murder    the    intent    to 
take    life   is   essential.      It    is    the    distinguishing   characteristic 
for   tliat   class   of  cases. 

8  Wright    (Penn)    55 
II    Bishop    98  0.728 

3-It    is   not    necessary   that    the   indictment    should  charge 
the    degree   of  murder,    that    is   whether   it    is  murder   in  the    first 
or   second   degree,    but    it    is   necessary  that    the   r'erdict   of  the    j'ory 
should   specify  the   degree. 


3  Ohio   State   39 


-o- 


October   31-1902. 


G    R   I    !m   I    N    -■-   L        LAW 
XI  .    L   E   C    T    U   R  E        X   I  31 

oOo 

Now   when  we    closed   the    last    lecture   we   were    considerinT 
the   crirr.e   of  murder.      V.'e   will   take   up   now   some    specific   cases  of 
murder.      As    for  example,    dueling. 

A  duel    is    a  fight    together   of  two  persons   by  previous 
consent    and   witli   de^vdly  weapons   to    settle    some    antecedent    cause 
or   quarrel.      This   definition  is   important    because    in  many    states 
all    th^   is    forbidden  is    duellin,'^.      Of    course   two   persons  might 
fi --ht    together    with  der.dly  weapons  without    any   antecedent    quariel 
but    that   is   not    a   duel.      If  one   of  the   persons   is  killed  all  per- 
sons,   including   second     and   surgeons   are   guilty  of  murder.       And 
of   course    it   is  murder   in  the   first    degree. 

24   Bratton    (Va)    reports  624 

A  challenge    to    dual   was   a  mis   demeanor    at    the   common 
law,    even   though  the    duel   did  not   take  place. 

6   East    Reports   464 

The    rea=>on  why   it   w-.s  pionishable    at    the    common   law  is 
because   the    challenge    itself  v:--?.g   a   breach  of   the   peace.      A  chall- 
enge   in   any   state    to    i'ight    a  -luel   in  another   is   indictable    in  the 
state   where    the   challenge    is   made   or    delivered.      If   A  challenges 
B   in  the    state    of  N.C.    to   go   over   into    the    state   of   '^..0.    to   fight 
it   out    in  a  duel,    the    duelling  would    be    an  offense    against    the 
state   of   S.C.    and  not    against    the    stnte   of   IT.G.    but    the   issueing 
of  the   challenge   would   be   an  indictable  misdemeanor   in   the    state 
where   the    challenge   is   delivered. 

I    Hawks   437 
12   Ala.    276 

We    come   now   to    another    specific    case    of  murder   and  that 
is   SUICIDE.      That    of    course,    is   nr^thing  more    than   self  murder. 
It    w?.s    a   felony   at    the   common   law.      You   can   easily   see    that    you 
cannot   punish   the   man  very  much  but    the   offense   was  punishable 
for   the   state    forfeited  his  personal   estate.      And   in   addition   to 
th?t    he   was   hurried    in   a  posthumous   ignomy   -   he  was   burried  at    the 
cross-roads   with   a   stake    running  through  him.       If   it   proved    at 
the    investigation   to   the    satisfaction  of  the  jury  that   he   who 
killed  himself  w.^s   insane,    the  goods   were    not    forfeited   and  the 
ignominy  was  not    inflicte.."!.      One   advising  a   suicide   which   is 
com'i'itted   in  his  x)resence    is   guilty   as  principal.      '-'e   is   guilty  of 
murder. 

10  5  Mass    162 

But    if   the  person  who    advised    the   siicide   was   absent    at 
the    time    the   sioicide    w^s    committed,    even    though   he    ac^vised  it,    he 


m 


.«   ~ 


XI  G    R    I    M   I    ':'    A   L         L    A,   W  .  32 

cannot    be   convicted  at    all    for  he    is   no  more    than  an   accessary 
before   the  fact. 

IX  Carrington  <?:  Payne    79 

Attempt    to    comr.itt    suicide   is  usually  p  mished   by 
3t'-tut3s.      The-'^i   of  coj.rse    you    can   veach  the    doer. 

MAJT5LAUrrHT"?v  is   the  next    crime   of  importance    against 
the   person.      Manslaug'-;t=r    and  m.urder   are    dist in/^uished   from  each 
other   by  the    criminal   ingredient   of  malice.        Manslaughter   is 
unlav/ful  homicide    '.'.ithout    malice.      !Tow  manslau.-rht er   is  divided 
into   degrees    in   some    states    (i.e.    first,    s;cond   and  third)    but 
not    s"^   as   a  rule.       At    the   c  orrjiion  law  inanslaughter    was   divi'-ied   into 
two    classes,     (a)    Volunt-iry   and    (b)    Involuntary   and  we    will   take   up 
Voluntary  Manslaughter.      This   involves   an  intent    to   kill   but   under 
such  cii-cumstances   as   repel   the  presumption  of  malice. 

48   Gal.    436 

That    is,    --.'here    one's    life   is   ta.:en  with  ,'^reat   excitement 
or    in   an    affray. 

Involuntary  Manslaughter    rests  where  death  is   caused 
by   an  unlawful    act    without    any   intent    to   kill.       (do   not   make    the 
mistake   of  getting   the   idea  that   an  intent    to   kill   is   always 
murder.      That    is   not    always    so.)      Manslaughter    is  distinguished 
from,  murder    in   that    there    is  no   malice    in  manslaughter,    but    there 
are    certain   circumstances   attending  nearly  every   actual   case   which 
t  ^nds    to    clav;sify  the    crime.      We   will    now   consider    some   of   these 
circ  ^onstances. 

Adequate   provocation   reduces   the   crime    from  murder   to 
manslaughter.      T.is   of    course    i  s  on   the    theory   that    the   act    is 
the    result    of  passion  rather    than  that   of  malice. 

35  Mich   16 

You    see    this   adequate   provocation  does   not    excuse    the 
crime,    it    only  mitigates   it.      Death  resulting    from  a   sudden 
affray  or  a  mutual    combat    is  m^-nsl  aught er. 

14   Cox   Orirn,    Gases    1 
108  Mass.    458 

Take  for   example    -    Suppose    that   one    finds    another   in 
the   act   of   adulte-.-y  with  his   wife    and  he    shoots  him,    he   i  s   guilty 
not    of  murder   but   of  manslaughter.       If  one    find    anothe-   attempting 
to   rape   his   wife    or    child  and  kills  him  he    is   guilty   of  nothing. 

II    Bishop    708 
PROVOCATION: 

(a)    The  provocation  must    be   adequate.      Insulting   words 
arj    not    sufficient    to    reduce    the    crime   of  murder   to  manslaughter. 

V   Gushing    295 

Blows  are  held  to  be  sufficient  to  reduce  the  crime. 


XI  G   R   I    M   I    rl   A  L        L  A  W  33 

Simple   t  c- ;  spassin:^   'i  property   is   n'^t    sufficient.      'To   man  has  a 
ri  "^I'Lt    10    shoot    another   because   he   is    trespassing  on  his  property* 

4  5   ^.'C.     308 
As   a  mat ;  )r   of    fact    t'e   ci^'cuTistances   of    each  case  must 
contro]    under    tVie  general    principaDs  of   law.      Th3    ca^e    that    rUs- 
cusses   provocation  more   thorou^^hly   than  ocherc   is: 

in   Mich,     212 
It    is    3omeii;.'is    said   thr^t    resisting   ilJegal   ar  est    v;ith 
t]-i3    3xtent   of   tc-king    life    is   no   more   than   -nans laughter. 

12   cushiog    £46 
Mays   riL'irA,    T.-.'.'.v   147 
The    ^hre j    things    tobe    conside    ed   are    l-?rovocation, 
2-M^lice    and,    S-Goolin^:   time. 

(b)  The    correct    test    a-   to    the   adequacy  of  provocation 
is    -    "V/as    it    suc!^   as    avou3  d  amon'3;  ordinary  men   excite   passion 
beyond    control?"      Ii    a  man  cannot    control   his  passions  he   must 
take    the    consequences. 

I    ^Jishop    710 
The    adequacy   of   r  aason.^bleness   of  provocation   is   a 
question   for   the   jury,    but    it    is   for   the   Court    to   r^ive   the    jury 
the    foles   of   law  which  they   are    expected    to    folJojv. 

10  Vich.    212 

(c)  Provocation   can-ot    become    a   cloak    to    cover   expi'ess 
malice.       So    you   se3    in  eviry   case    you   are    apt    to    be   confronted 
^ith   tnis  proposition.      The    defendant    -.nil   show  great   provocation 
ior  conr.iitti.ng    the  act,    but    c  he   prosecutor  nay   show  facts   and 
circtmst-nces   that    the  man  v^as   one    bundle   of  express  malice. 

37  Mo.    4(,6 
The  linnecessary  use    of   a    deadly  weapon   to    repel   an 
assault    is  murder   and  not   mansl  au'-hter. 

VII  Carrington  &  Payne  317 
30  M.ch.   735 

(d)  cooling  Time.      That    expression   is    a  legal   term  and 
IS   a  part    of  the   law  of   crime    just    as  much  as  murder   is.      It 
means   thrt    if   the  passions   had   time    to   cool    (subside)    the   TDrovocat 
ion  does   not   mitigate    the    crime.      i.!any  cases   of  provocation  have 
ia.len  to   the   ground   because    there    was    too  much  cooling  time.      In 
rtner  word    ,    rhe   homicide   m^'st    follow   close   onto    the    leels   of 
provocation  or   the   offense    is  murder   and  not   manslaughter.      There 
IS   no    stated   time,    but    there    are    some   test-.      However,    the    quest- 
ion   is   one  for   the  jury   to   dete   mine    from  aj  1    cbe   circumstances. 

13   the  i.    212. 
Under    some    circumstances   an  hour   has    said  to   be    suffic- 
ient.     The   real    test,    gentlemen  in  my  jud-ment,    is   this   -    "Has 
tne  mind  been   diverted   so    that    the   reason   could   ass^ome    control?" 


yi  C    -I  I   :.'  I    •I'  A  \.        L   A  W  34 

Bishop    s?ys   th^.t    'ho    sufi'iciency  of  killing  and   the 
sufriciency  '"f  rrovocati'in   ar-a  .r ispectivaly   q'.'9Ftioas  of   la'v   and 
not    of  fact.      '^?.'3l3    ^^nt le/i-si  I   hav~j    told  you  to   the   contrary    and 
I    d'n't    bjlievo    t}i5t   I    -.ul]    change  it. 

11  EishOF    ■     713 

Of   co'jrE'e    thei  a   n\?Y  be    c^.-3s   wher  )    the    co;rts    will   pass 
ufon   it    .?t    OTice.       If    the  pfOvocr?,t  i-n  is    as   a  matter   of   ]aw  in- 
adequate,   it    in    the    ^uty  of   the    c^urt    to    te]l    the    jury    so. 
I I'VO  '.U^ IT ARY  W AJ^SLAUC-'IT  ~:n  : 

Of   course   in   invol  . 'it  iry  marisla  -^htei-    th.ere    is  no    quest- 
ion of  provocation  or   nvlice.      One   who   while    comraittj.n;";   an  un- 
lawful   act    (maluTi  m   se)    kills   ^.  not  her   witho.it    intend  in,^  to    kill 
is   c-'^iluy   of   irivoluntary  mans!  aur'-hter. 

12  Cox'    ■;'r-i^..  C--ses    530 
24       M  II  «  2 

In   the    first    case   above   -nentioned   is    loixnd  a  most    re- 
markable  case.      The    -'efendent    struck    ■:   severe    blov/   at    a  w-^man, 
who  hed   in  her   arms    a   baby.      The   blow  fri-'rht3ned   the  baby   and 
resulted  in   its   death.      "-^e   was   held   r^uilty  of  mans]  au-^hte-. 

One    v;ho   occasions   the   d   -^th  of  another   tlirough  neglige  rcc 
may  be    guilty  of  uvansl  ?,u~ht  .-5  r,    tho    ■-'h   he    :i  id  not    intend   to    kill 
or    do   bodily  harm.      This   is   t  ha   inost    common   cause    of  manslaughter. 

I    "-wkin's   ?le.-s  of   the    Oc-.wt.     c    31 

Cti-oss   carjlessne    s   of   a  physician   resulting   in  deach 
will    r  nrier   him  liable    c  rimi:'ia'' "' y. 

10  Cox'    Grim.    Oases    525 
I J     "-is. •"'.op    633 

One    is   guilty  of   involuntary  manslaughter  when  he   kills 
another   by   negligent   use   of  fire    arms. 

4  7  Iowa    647 

\^.nien  one  negli'';ently  ruTS  over  another  he  is  guilty  of 
involuntni-y  manslau  "htur.  One  who  rides  a  bicycle  over  another, 
kiljin-T  him,    is   guilcy  of   .nvoluntary  manslaioghter. 

11  cox'    Orim  Cases    102 

It    is    said    that    even   a  practi-.-l   joke   may   beco-e    a  crime. 
II Lewi n  Cri':-'..    Cases   217 

:Tow   these    cases    are    cases   of  negligent   misfeasence. 
I    shall    Lf-ke   up   tomorrow  cases   of  non   feasance   resulting  in  man- 
slaughter. 


November   6-1902. 


-     C   R   I    I!   I    I'   A   L        LAW 
XII  L  E   C    T    U   R  E        XII  35 

oOo 

V/e   were   on  the    sabject   of  manslaughter.      We   had  discussed 
voluntary  m?nslaughter    and   about    ';oncluded   the    s-jbiect   of  invol- 
untary manslaughter. 

Involuntary  manslaughter  may    arise    from  misfeasance   or 
noni'easance.      We    ■iiscasse'"'    involuntary  manslau'-^iter   arising  from 
raiefeance   and  where    "ne   does   an  unlawful   act   without   intending  to 
kilF  anybody  and  kills  him.      Now  we    come    to   the    subject   of  non- 
feasance   in  manslaughter.  ^ 

Nov  the  negligent   omission  of  an  act  may  amount    to  man- 
slaughter  if   the   death  of   the  party  wronged  follows.  * 

31  Garr   r  Kern   123 

32  'J.J.    I..  159 

This  w-s   the  case   wherein  an  engineer  in  c  l-arge   of  a 
train  allowed  his  engine    to   be   handled  by  r  i  inexperienced  person 
and   through  this  "en  accident   ha^^-   ene-^,    which  r^sujted   in  the   dQ'^th 
of  a  person.      The  engineer   was   indict  :d  for  manslaughter.      The 
only  evidence   W:-.  ■   that   he    left   his   engine    in  char-:e  of  an  inex- 
perienced person,    and  the   Court   held  that    the   conviction  was  prop- 
er. / 

If  one  neglects  a  person,  _such  as  a  parent  neglecting  , 
to  f'jrnish  prope;"  food  or  cl  thing  for  his  child,  he  is  indict-  ' 
able  fo  r  manslaughter,    provi-iing  death   follows.  . 

X  Gox'  Crim.  Cases  530  , 

This   is  one  of  the   Christian  Science   Cases   in  which  th^ 
defendant   neglected   to   call    in  medical   assistance   on  the   belief^'' 
that   the   Lord   would   heal    t  te    =ick.  •  ' 

XIII    Cox'    Crim  Cases   111 

Of  course   the   more   comriran  examjiles   of  involuntary  ma/i- 
slaughter  of   this  kind   and  nonfeasance   arise   where  persons  faiT, 
to  protect    those    which  are   entitled   to  protection  lender  th4m. 

II    Bishop        686 
III    Foster    (N.H.  )    355 
EXCUSABLE  HOMICIDE: 

Elackstone  puts   it   very   well  when  he    sayd  this  invot-^s 
a  little   guilt    but   not    enough   to   deserve  p\Anishment.  Vou  /re 

all   familiar    with  the   doctrine   of   self  defense    and  that   is  /h«/   i^ 
meant    by   excusable  homicide.      There   is    a  false   impression   «ith 
reference    to    excusable  homicide   and   that   you  may  as   wall    cprrelt 
now.      Excusable  homicide   is  not   criminal   when  committed  ii^  sel: 
defense   ^r  in  defense   of  one's   habitation  or   to  prevent    the   cjm-i 
ission  of  a   felony.      The   popular  impression  that   it   is  defejj4«   »n 


XII  CRIMI^^AL        LAW  36 

a  personal    combat.      That    is   not    so.      Ono   may  protect    himself,    his 
servants   or   any  mamber  of  his    f^irily. 
Ganer-^l    Principals: 

1-One    lias    ?    ti-'ht    to   rapel    an    -  =  3ault   with   force.      That 
is    -.he   O'i^in   of   the    rioct.-ine    that    rest'   in  a'-.-^ault    and  batiey. 
Tie   must   not    7;o   further    than  is   necessary  or  he   will    be    a  wrong 
doer   ftofe  the    begin.iing  and   liable   c  ■- iriinal^y. 

3  Minn.    270 
5  Gray    (I'ass)      475 
2-The  pers  n   assualted  should  retreat    to   th?  w^ll    before 
takinr^   the    life    of   ^is    asseilant.      The    theory   is   th?t    when   a   man 
is   assaulte'f   he    should  get    out    of   the    W3y,      The    Daw    says    thte  when 
a  man  is   assaulted   it    is    a  ^'^ood    deal    better   for  one   man  t;-    be    a 
coward   than  for    another   man  to   ciie.      He    shD';]d   avoid  the   conflict 
just    as   far    aspossibl5. 

34      in   .       18 
15   Ohio    ct.     47 
To   the    contrr-.ry: 

57    Tn-T.     3'1 
^fheci   an  assualt    is   made    with  m^^    -"erous   intent    the  party 
assailed  may   st^nd  his   groiind  and  kill    his   adve    sary.      That    is  to 

ay   if   the    c  ircunstances    show   thai    the    assailant    intends    to   take 
the    life   of    the    r^efendant   may  instead   of   retreating  kill   the    ass- 
ailant  on   the    spot    and  he   is  excused. 

9   low-    183 
Again  the   person   assailed  is   not    required  to  retreat    if 
retieating    wou]  d   endanger   his  own   life. 

2  '"right    (Penn)    265 

I    touch  now  f^r    the    first    time    a   subjec    t    tht  I    shall 
hav !    to  refer   to    again  and   again  before   I    get    through  with  specif- 
ic   crimes.      There   is   one    factor   in   criminal   that    is   yo^or  duty   to 
'onde  ■  stand.      you  have   heard   the   familiar    saying   that    a  man's  home 
is   his   castle.      ''ow    then  when  a  man  is   a'^sailed   in  his   ovm  home 
another   question   is   involved   entirely.      The    ssnctity  of  a  home 
is   more    sacrid  than  that    of   any   individual   person.       "ne   as-ailed 
in  his   dwe]]ing   is  not    required  to    retreat.      If   assailed  upon  the 
street    he   may  b3    required   to   retreat     vS   fir   as  possible    but   not 
so   in   thj   home. 

3  Mich.     3  50 

That    was    -    c-se    in  wluch   the    defendant    was    a   fisherman 
and  he   had   a   net    house   on   thi    shore   of   the    ^a-.e.      He    also   had 
servants   wno   assisted  him  in  t  lie   fishi'-g   for  he   fishefl   for    business 
and  not    for  pleasure.      A  n^imber  oi'  persons    in   the    neighborhood 
became    enraged   at    the    defendant    and   determined   to  make   it    inter- 
esting  for  him  and  came   in   the    a:ght    with  shotguns,    but   he   went 
out    and    drove    them  away.      They  made   a   second   assault    and  he    became 


XCI  G    R   I    M   I    M   A  L        L  A  W  37 

wearied  and    starts''   out    with  a   shotgun  and   fired  into  the   flook.     - 
He   injured    several   and  killed   one   or  two.      He   was  indicted  for 
manelaughter.      The   defense   waa   that   he  was  in  a  legitimate   defen- 
se  of  hia   habitation. 

One  may   defend  his   famil ",    his    servants  or  his 

aaster  whenever  he  may  defend  himself,      or   course   he   is  not 
Justified  In  interJ:"aring    with  every  brawl   thti  comes   to  his  obser- 
vation.     In   self  defense  one   is  justified  in  acting  according  to 
circumstances   as   th>  appear  to  him,    even  though  there    be   in  fact 
no  danger, 

2  TT.Y,    197 

Where   it   is   said   that    the   fear   of  '^reat    bodily  hsfrro 
without    reasonable  cause   is  no   excuse   for  takin/^  life. 

One   who  provokes   an  a   sault   and  then  finds  that   he   is 
over  matched  and  kills  is  not   excusar). 

23  Mo, 287 

Now  that  is  a  cese  where   the  accused  provoke'^  the 
assault   by  pushing   the   decease^  and  then"  ItJfted  a  spade   as  though 
he  were  going  to  .brain  him.      The   deceased  pulled  a  revolver   and 
then  the   defendant    struck  th^  deceased  with  the   spade   and  killed 
him.      It   was  held  that   h«  was  properly  convicted  of  murder  in  tln^ 
first    degree. 

2-In  the   defense   of  one's  habitation  against  a  felonioj^is 
attack  he  may  take   the    life   of  the   assailant.      He   is  not  obliged 
to  retreat   beforj  killing. 

I   Hales  Pleas  of  the   Grown  486 

An  attack  upon  a  man's  habitation  is  not    felonious  ai^d 
is  equivalent   to  an  attack  upon  his  person.      The   fact    that    the 
attack  was       ;  made     would  certainly  reduce   the   crime  from  mur^^r 
to  manslaughter.      But,    a  trespass   to  other  property  than  the 
habitation  does  not  mitigate    the    crime. 

I   Hale's  pleas  of  the   Crown  485  •• 

The   distinction  between  a  man's  habitation  and  other 
property  xs   that   you  have  not   the   right   to  take   a  man's  life  Ir) 
defense   to  property. 

3-One  may  protect  his  property  by  force  but  not  as  fi 
rule  to  the  extent  of  taking  a  human  life  /.'hen  the  property  ^M, 
not   the  Ijabitation.  i 

24  Wendall   369 

In  other  words    th'd  mere   tespass   to  property  will  tnot        / 
excuse    the   taking  of   life.      It    is  better  that    you    should  l^s« 
your  wealth  than  another  man   should   die.      One   is,    however,    j^stJ-  \ 
fied  in  protecting  his  property  against    the   forceable  or  atDbcio^si 
felony  as   burglary.      !Tow  gantlsmen  here    is  a  practical   question. 


*?;.-,  ; 


n' 


c:  1-  '< 


*  :.  '        ■  ■  ^ 


;^,!(    %;.;--«':TC"iq    r  1'-:    ;:  r  i  ■; 


XII  C    R    I    ^-    I    ■-    A  L        L   A  W  38 

You  av  i    in   your  own  house    and   you  see    a  rndn    cravain^^   in   at    the 
window  \xnd3r   circumstances    t-^at    indicate    thot   he    is   committing   a 
crime   ol'   burgDary.      Mave    yo  ■   a   ri.'jht    to    shoot   him?      Yes   you  have 
a    •"i^ht    to    shf^ot    him,    but    you  have   nor    a    rl'^ht    to    shoot  him   bec- 
ause  he    is    stealing    apple?   out    or   yo  :,r   ore.  at-i.       !^^^t ,    you  have 
the    right    to  t?Jke    the    ]ife   of  a  man  who   is   commit  t  ing   burglary, 
but    beat-    thi  -   in  mind   that    it    is  not    because    you  are   protecting 
prorerty,    it    is   on   the    theory   that    you  are   preventing   the   comnuss- 
ion  of   a   felony,    and   I    have   told   you   th-it   one   is   justified   in 
taking   the    life    of   another   to   pr-jvent    the    commission  of   a  fiony. 

May's   Ci-i::!.    Lv,w   146 

It    is    said,    howeve .  ,   that   one    is   not    justified  in  t  'king 
a  human   life    to   prevent    a    secret    felony. 

8  Ivlich.    150 

As    a  general    rule    one    is   excused  or   justified  in  taking 
life    to   pr.vent    the   commission   of  a  forceabJe    flony   such  as   a 
r   pe. 
JUSTIPIAELf^,   '^OJ.aCIDE: 

This   is   whe'e    one  takes    the    life   of  a   human   being   in 
dischaige    of    some    official    or   public    duty.      The    Judge   who    senten- 
ces  a  man  to    be   hung   is  guilty  of  homicide    but    that    is   not    felon- 
ious  oi-   ex-usable,    it    is   justifiable.      The    Sheriff   is   guilty  of 
homicide    when  he   hangs   one    but    there    is   r.o   crime. 

I    '-ale's    PJeas   of    the    Crown   496 
rob:  ERY 

Robbei-y   is   the    felonious    aad   forceable   tiki"-g   from  the 
per -on   of   another   go 'ds   or  mon  ^y   to    any  value,    (The   value   is  of  no 
importance   whatsoever.)    by   violence   or   putting   in  fear   v;hich  is 
equivalent    to   violence.      In   this   it    is   the  wrong   against    the 
person   and  not    the    wrong   against    the  property   th?t    is  punished. 
General    Pr-^pcsi  tions : 

1-The  propex-ty  i.iust    have    be  'n  taksn  through  violence. 
This   is    said   by   some    autho.^ities   to   involve    a    str^gle,    and   some 
authoi'ities   have    gone    so    f-   •    ::••■    to    say    that    the  paity   assault  3d 
must    have    been  put    in  i'^'3.r.       "all   th  5l    is   not    true   in  my   judgment. 

5   -Jon.-s   !J.C.    153 

2-The  force  used  to  a:cor..plish  the  robbery  must  have 
been  met  with  resistance.  ^^imply  rer.  iving  property  from  one's 
pocket  iL  -ot  robbery  (by  stealth)  for  there  is  not  sufficient 
resist    nee, 

64    Ind.     13 

^ri-:-!.    Cases    279 

fTovember   7-1902. 


64 

Ind. 

13 

5 

Parks 

1 

64 

Ind. 

13 

CRIMINAL        LAW 
XIII  LECTURE        XIII  39 

V/han  we   closed   the    last    lecture    we   v/ere   lUscussin'^  the 
subject   of  robbery.      I    think   that    I    had    called   your   attention  to 
the   fact    that    the   criminal   act   must    ba   met    by  resistance,    and 
that    resistance   which  involves   simply  recapture   was  not    suff- 
icient.     The   cases  upon  that  are   exceedingly  refined.      An  old 
English  case   in   which  the    defendant    snatched   a  wig   from  the   head 
of  the  prosecutor.      Now   the  question   arose    at   once   whether  or 
not    that    was    robbery.      It    was  held    that    there   was   no   robbery 
because   there    was  no   resistance.      So   I    think   you  can  understand 
what   I   mean  when  I    say  that   I    think   t^e   law  on  that    subject   is 
q^lite  refined. 

5  Jones    (M. C. )    165 

The   judge   in  that   case    says   that  force   is  of  four 
kinds: 

l-Prevent    resistance, 

2-Overpower   the   pariy, 

3-Obtain  possession  of    the  property    (regain) 

4-To   affect   an  es6&pe. 

In  my  judgment   t^e    true   rule   is   this   -   If   the 
facts   show  that    the   ac  •    sed  intende"    to  use    force,    if  necess- 
ary,   and  used   force    in   the    taking   and  in  escaping   it    is   robbery, 
otherwise   it    is   larceny.      This   is  not    in  accord-  with   someother 
decisions,    but    I    t  liink   it    is   the   true    rule.      But    if  the  property 
be   detached  from  the  person,    however   slight,    this   is   sufficient, 
as    snatchin~   the   watch  or    bre^^king  the  chain,    that   would   be 
rob'jery  unquestionably. 

2  East    Pleas  of   the  Crown   709 

The   pulling   of   an   ear-ring   from  the   ear,    lacerating 
the   ear,    is   robbery. 

2  East  Pleas  Crown  703 
i  Leach     335 

Y-^u  understand  gentlemen   that    thee   are    3ar-rings   and 
hair-pins   of  great    value,    provided   they  are    set    with  diamonds. 

Putting  one    in   fear   through  thre--ts   is  equivalent    to 
force   in  robbery.      Many    crimes   are   not    c  cmmit ted  unless   force 
is   \;sed.      Fear  must    be- such  as   in  reason  is   likely  to   induce 
tlie   person  to   part    with  his  property  against   his   will. 

The   fear  m.ust    be   of  persoral  violence,    as  where    a 
pistol   is  presented   -    that    is   robbery.      Extracting  money  from 
another   under   threats   of    criminal  prosecution   is   not    robbery. 
It   may   be    extortion   but  not    robbery.      There    is   one   exceptional 
case   wher';?   it   waa  held  to    be    robbery  where    a  person  extorted 


XIII  CRIMINAL        LAW  40 

money  from  another   on  the    threat    that    he  ivould   annex  him  to   the 
vmnatural  crime   of    sodomy.       It   was   held   that    that    was    robbery 
but   I    do  not   know  of   another    case    like   it. 

12  Ga.         293  ^ 
1  Parker's   Crim.    Cases   198 

Property  must    be   taken  from  the    PERSON  of  the   owner. 
By  that   I   mean   this    -   it   may  be    taken   through  fear  or   threats 
but    the  property  must    be   on  the   person  of   the  woner  or   so   near 
him  that   he   is  under    the   control  of  the  wrong  doer  when  he    delive- 
rs  up   the  property. 

10   r!rim.    Law  I/.a/^.    85 
5    .  ,.sh.    C.C.    Rep.    209 

The   person  robbad   need  not   be   the   owner   of    the  proper- 
ty.     It    is   sufficient    if  he   have  possession  thereof.      If   you 
have    another  man's  money  in  your   pocket    and  it    is    taken   from  you 
the  man  who    takes   it    away  is   guilty  of   robbery.      It   is   no   defen- 
se  for  him  to   say  that    it    was   not    yoixr  property. 

8  Curtis    215 

The   reason  for   that   you  understand  is   because   the    robb- 
ery  is   not    an  offense    against    the  property,    but    an  offense    aga- 
inst   the   person.      One   taking  possession  of  his   own  property 
through  violence    is  not    gulity  of    robbery.         It   may   be   tresspass, 
assault    and   battery,    but   not   robbery,    because    the    law  approves 
a  man   taking   possession  of  his  own. 

Mow  the  next    crime    against    the  person  and   the  highest 
crime   in  the   law,    next    to   felonious  homicide,    and  one  that   oiight 
to   have   been   considered  before   robbery  is   the   crime   of  RAPE. 

RAPE  as   you  know  involves    the   violation   of   the  most 
sacred  of  human  possessions   -   a  woman's   chastity.        Under   the 
Jewish   law    this  was  punishable    by   deaths    if  the   person  wronged 
was   betrothed,    otherwise    by  a  decree    of  the   Jewish  coiirts   that 
she    become   his  wife    for    life. 

Under    the   Saxon  Law  the    offense    of   rape   was   punish- 
able   by   death.      The   crime,    by  all    civilized  nations,    has   been  re- 
garded   as    the  most    serious    crime,    other    than  treason,    and  some 
think    that    it    is   a  higher   crime    than  felonious   homicide.      In 
Michigan  a  party  gulity  of   the   criv:e   of   rape    is  punichable    for 
life   or  any  number  of  years.      In  some    st  .tes   it    is  punished  very 
very   severly   and  in  others   quite   loosely.      Now  as  to   the    defin- 
ition of  the    crime. 

Rape    is    the   unlawi'ul   carnal  knowle'^ge   of  a  woman   by 
force   and  without  her   consent.      Every  pe    son  14  years   of  age   is 
presumptively  capable    l.    committing   the    crime. 

{  Garri!:Ston  &  Payne  118 

Every  woman  ir-respective   of    age  may  be   violated. 
None   are   too   young   and  none    are    too   old. 

I    Hale's   P]eas   ^rown  630 


1'   '  J 


■J    '1 :  •  ••;•, 

' '  '.    "" 

_i 

.  '.^^:  . 

;.*• 

■^  *'■  _ 

. 

'vHt.' 


:  *  7  * 


XIII  CRIMINAL        LAW  41 

The   offense   may   be    com  it  ted  upon  an  iJnchaste   v/oman. 
The   chastity   of   tha   woma-^    is   admissible   in  evidence   only    for   the 
purpose   of  decidin'^   the    qiestion   as    to   whether   the   act    accomp- 
lished v;as   done   ^vith  her   consent   or    throu-^h   force. 

15  Ai-k.       624 
''OW    then  the   first    inc^'^flient    of   this   crime    is   that 
the    crime   must    be    committed   with    r'orce.      T'-^e   woman  must   resist 
to    the  uttermost.      The   det    ils   of    the   crime    are    not    fit  for  dis- 
cussion before   a   body    -f    students.      I    will   refer   you  to   a  few- 
cases   illustr9>tinc    the  proposition. 

1]    Neb.    276 
45  nonn.256 
59   Ur.Y.    374 
In  this  New  York   case    the    court   put    it   precisely  as   I 
think   the   ]?-v   is.      Whatever    the    c  ire  urns    ances  may   be   there   must 
be   the  greatest    ef''ort   with  which   she   is   capable,    to   preserve 
her   sanctity.      That    is    true   or   els      the  offense    is   not    rape. 

A  child  under    10    years   .f   ago    at   the   common   law  was 
incapable   of  giving    consent.      If    a  person  had   illicit    inter- 
course  with  a   child  undei-   10   years   of   a^re   he   would  be   guilty   of 
rape    even  thoup;h  the   child   consented  it   made   no   difference 
for   sine   is   without    capacity   to    c^^nsent. 

9         ch.    150 
That    is    what    is  kr.o'vn  in  the   lav;   as    the    age   of  con- 
sent.     That   has    baen  charged  by  nea   ly   every   state    in   the   union. 
It    was      raised    in  Michigan  first    to    12   yea   s,    but    in   1887   it 
was   raised    to   14   years,    and  now   it   has   been  raised  to    16   years. 
At    this    latter    time    there   was    an  attempt    to   raise    the    age    to    18, 
but    this   wa?   defeated  upon   the   grounds   of   Blackimai  ling. 

Consent    obtained    through   fraud  is  not    consent.      The   act 
xinder   such   circumstances   is   against    the   will   of  the   mind. 

13   Llich.    438 

25  Mich.    335 

Contrary      -        50  Wis,       518 

But    I    am  inclined    to    think   that    the  vrisconsin  ^ourt    is 
not    in   accord    with   the  other    states. 

94   Ind.    96 
8   Gar  -ington  &  Payne    265 
If    the    woman   is    so  far   intoxicate-''   or   drugged  that    she 
has   become   insensible    she    is   incapable  of   giving    consent   and  the 
offense    is   complete,    in  other   words    she   is   not    required   to    res- 
ist   further   than  her   condition  will   permit.      If   she   is   in  poss- 
ession of  her   faculties   she  must   resist    to    the  uttermost. 

105  Mass.    376 


XIII 


C   R   I    M'  I    IT  A   L        LAW 


42 


KIDNAPPITC    AND    ABDUCTIOM: 

Kidnappin":   is    the   forceabls    stealing   a-vay  of  a  man 
woman  or  child  from  their  own  country   and   sending   thia  into   ano- 
ther.,    (that    was   Blackstone  '  s   definJ  ■.:  on.  )      That    is   not   true   now. 
A  men  can  be  kidnapped  without   going  out   of   the   city  of  Ann  Ar- 
bor. 

4   Blac.kstone    nonm.    219 

Abduction  was  anoti.d-''   cr.'me   independent    from  kidnapp- 
ing at    the  common  lav/<,      There   i  s  no   distinction  at    the  present 
time,    but    at    the   comruar     .aw  it   w^s    the   taking   away   of  maid, 
widow  Oi'   wife   for  lucrs.      The    term  of  abduction  as   it    is   now 
used   involves    the    taking  away  of  maid-,    widow  or  wife   for  pros- 
titution. 
ASSAULT    AND   BATTERY: 

This   is   a  crime   that    will   be   one   of  the   first    cases 
that   you  will   have    to   try   for  it    is   one  of   the  most    common  off- 
enses.     An  assault    is    but    an  attempt    to    do   bodily   harm,    and  a 
batte  y  is    the   execution  of  that    attempt.      I    never  knew  of  a 
case   of  assault    being   tried    alone,    but    an  assault    is    an  offense 
against    the   criminal    law  even  though  no   battery  follows. 

I   Hawkin's   Pleas   Crown      62      si 

An  assault    is    an  inchoate   violence    to   the  person  of 
another  with  the  present  means  of   carrying  •  it   into  effect. 

Threats    are  not    sufficient    -   actual  violence   must    be   offered. 

-     4:5   Mich.    p2l 

The    fir^t   proposition  is    that    there  must    be    a  present 
intention  to    strike   manifested.      A   conditional   fear  to    do   viol- 
ence   is  not    enough.      Now  gentlemen  that    is   a  proposition  that    you 
don't   want    to    let    slip    your  minds.      You  cannot   have   a  man   con- 
victed of   assault   where   what   he   says   indicates  no   present   inte- 
ntion. 

35   Ala.    363 

Mere  preparation  for   an  assault    is  insufficient.      Thece 
must    be    the  commencement   of   an  act,    which  if  not   prohibited, 
would  have   produced   battery.      It    is   said    that    the    drawing   of  a 
pistol    without   presenting   it    is  not    an  as-ault,    but   a  preparat- 
ion.     Putting  in  fear  by   conduct   and    a  well  grounded  apprehension 
of   bodily  harm  is   an  assault,    iven  though  the    battery  may  not 
be  possible.      The   demonstration  is   the  mischief  which  the    law 
prohibits. 


■JTO    "- ss.    407 


C    R    I    I.:   I    "   A   L        LAW 
XIV  LECTURE        XIV  43 

oOo 

V/e   were    discussin/^  .asssiTlt    and  battery   yesterday,    and 
if  you  rdmembe;'   correctly,    I    told  you  that    it    was   one   of   the    sub- 
jects  in  which   you  wou]  d  di  stinf^-ai  sh   yourself  e-^rly   in  your  pro- 
fessional  career,, 

-   The   particular  poi'it   v/9s  v;hether   or   not    it   was  an   ass- 
ault'to   point    an  unloaded  pistol   at    a  person?      1-On  the   theory 
that    there  was  no   intent    to   do  any  harm,      and,    2-The   execution 
of  the    attempt   was  not   possible.        I    also   told  you  that    the   auth- 
orities on  that    subject    were    conflicting,    some   holding   thfe  it  was 
an  assault    and  others   holding];   that    it   v/as   not. 

II    Bishop   r.rim.    L.=-w   s32 

I    will    state   to    you -what    I    think   to   be    the    better  rule, 
ana   it    is   that   menace   of  immediate   personal  in-jury  through  an 
act    such  as    to   excite   apprehension  in  the   mind  of   a  reasonable 
man  is   an  assault.      It   makes  no   difference   whether   the   pistol 
was    loaded  or   unloaded.      You  lander^t^nd  that 

the  whole   theory  of   the   criminal    law  is  what    is  punished  is  what, 
is  dangerous   to   the  public   peace.      The   tendency  of  an  act   to   dis- 
turb the  public.      The   ♦•endency   is   just    as   strong  when  the  pistol 
is  unloaded   as   wh,en  it   is   loaded.      Many  authorities  hold,    how- 
ever,   that   whai   the  pistol   is  unloaded  there    is  no  assault. 
That    is   a.l  1    I    car^    to    say  upon  t  tie    subject   of   assault. 
BATTERY : 

Battery  is   the   unlawful   beating   or   other 
wrongful  physical  violence   upon  a   hiiman  being   without    his 
consent.      Of   coiorse   it    is  not   necessary  that    there   should  be   any 
serious   beating.      The    offense   is  complete    in  the   eye   of   the    law 
when  any  physical  wrong  has   been  done,    however   sli'^.ht.      Spitt- 
ing  in  one's   face   is   a  battery.      Knocking  one's  hat   off  his 
head   is  a   battery.      Mow  in  one    sense   that    is   a  bat  try  and  in 
anothe'    it    is   not    a   bpttery. 

I   Russell   on  Crimes   957 
114  Mass.    323 

It  is  sometimes  sai-"  that  any  unlawful  act  follov/ed 
by  physical  injury  to  another  is  a  battery.  It  is  said  that 
if  one  sets  a  dog  on  another  and  the  dgg  bites  him  it  is  an  ^ 
assault    and   battery. 

43   Ind.    146 

This   is   clearly  true   by  all   authorities   that    the    ad- 
ministering of  poison  without    force,    as  putting   it   in  one's 


>:: 


XIV  CRIMINAL        LA  W  44 

food  is  assault  end  battery.  Of  ^'.oijirse  the  ofi'ense  is  punished 
by  the  statufea,^  of  most  states  by  a  moi-e  serious  ihHfje,  but  the 
offense    is   tech;  nically   assault    and   battary. 

8   Cax'ria:^ton  ■':   Payne    303 
114  Mass.       303 

Bishop    say-    that    the   inanimate    thinr    m  th  which  a  per- 
son  inflicts   an  injury  is    the    innocent    agent   of  him  who   has. 
criminal    intent    and   causes   it    to   act    in  tr;.    particular   instan- 
ce.        That    is   a]l   good   in   theory  but   it   is  not   of  any  great 
practical   importance    because    in  eve;:'y   state    in  the   union  there 
are    statutes  providing  that    if  a  person  administers  poison  he 
is  ,^ui]ty  of   the    subsequent   offense   even  thou/^h   it    does  not    re- 
sult   seriously.      The    force   used  must    be   unlawful   or  unreason- 
able  in  extent    -   either  is   sufficient.        The    force  used  in  mak- 
ing  arrests   is   not    battery.      It    is  not   vrron^ful   civially  or 
criminally. 

11  Eng.    Law  &  Equity   386 

But    if   the    discipline   or  force   used  is   carried  to   an 
unreasonable   ext  .nt    it    becomes   wrongful   ab  initio. 

13  Mass.    347 

Of  course  the  battery  must  be  against  the  will  of  the 
party  complaining.   That  question  generally  arises  where  a  wo- 
man cl-aims  that  she  has  bean  wrongfully  or  indecently  assaulted. 
If  a  v/oman  consents  to  her  n-'sn   dishonor  she  cannot  complain  of 
an  assault  and  battery. 

32  N. y.  525 

If  two  go  out  in  anger  to  fight  together  with  their 
fists,  each  commit ts  an  assault  upon  the  other. 

1  Carrington  -§:  Payne  419 

It  has  been  held  in  Massachusetts  that  each  is  guilty 
of  an  assault  upon  the  other  whethe  there  is  any  anger  or  not. 

119  Mass.  350 
contrary  -  14  Ohio  <^tate  437 

Now  that  is  all  I  care  to  say  upon  the  subject  of 
assault  and  battery  and  we  wil.l  next  tike  up:- 
AGGRAVATED  AS'^.AULT'^: 

A  distinction  is  observed  between  a  simple  and  an 
aggeavated  assault.   Bishop  says  that  we  lork   upon  an  assault 
as  more  or  less  aggravated  by  s\ich  attenda;  ^..    facts  as  appeal 
to  the  application  of  a  heavy  sentence.   It  is  an  aggravated 
assault  when  it  constitutes  a  part  of  a  higher  crime,  as  ass- 
ault with  intent  to  kill,  and  assault  with  intent  to  r-ipe. 

2  5i  shop      42 

Now  under    the   English  common   law  assaults   on  parti- 


XIV  G    R    I    M   I    IT   A   L        L   A  W  45 

cular  persons    wer^   punished  as    agfTiaravated  assaults.         An  ass- 
ault  upon  a  member  of  parliment  was   an  acsravated   assault i .    or 
a  clergyman.      V/e   have   n-^thing   of  the  kind  in  this  country.      It 
is  no, greater  crime    to   assault    the    President   of  the   United   Sta- 
tes  than  anyone   else,    unless   by  that    late   congressionaly  enact- 
ment. 

Assault    with  Deadly  weapons   was   another   form  of  aer-^- 
ravated  assault.      An  assault    to   do   great    bodily  harm,    less    than 
the    crime    of  murder,    is   an'^ther   a-;3gravatec!    as'^ault.      An   assault 
to    committ    a  higher  crime   than   batter  must    be    specifically  prov- 
ed,   that    is,    the  intent  must    be   proved  because    the   intent   is   the 
gist   of    the    offense. 

19   Mich.    315 

How  under  an  indictment  charging  ons  with  an  assault 
to  kill  and  murder,  he  may  be  convicted  of  ?^  simple  assait  and 
battery,  that  is  to  say,  the  lessor  offense  is  included  in  tl^ 
greater. 

19  Mass.  315 

This  was  not  so  at  the  conxnon  law,   a  man  could  not 
be  indicted  with  an  offense  to  kill  and  murder  and  then  be  con- 
victed of  assault  and  batte.-y.   At  the  common  law  a  person  who 
was  indicted  for  felony  was  not  entitled  to  the  benefit  of  co- 
unsel nor  to  a  copy  of  the  indictment.   But,  i  f  he  was  charged 
with  a  misdemeanor  he  was  entitled  to  the  benefit  of  coiinsel 
and  a  copy  of  the-  indictment. 

MAYHEM  pt  the  common  law  was  another  aggravated  form 
of  assault.   In  some  cases  it  was  a  misdemeanor  and  in  others  a 
felony.   You  knov;  what  mayhem  is.   It  has  been  defined  to  you 
as  depriving  a  person  of  a  member  useful  in  fight.    It  was 
held  in  an  old  English  case  that  the  loss  of  a  tooth  was  mayhem 
while  that  of  an  ear  was  not. 

41  Texas  G19 
CRIMINAL  LIBEL: 

Lible  is  an  indictable  ofj-.'ense  at  the  common  law  and 
generally  in  this  country.    Criminal  slander  at  the  common  law 
was  not  indictable.   In  many  states  there  is  what  is  known  as 
criminal  slander  by  statute.   At  the  common  law,  howevir,  crim- 
inal libel  was  an  offense  that  might  be  indicted.   The  theory 
was  to  prove  a  breach  of  the  public  peace.   Of  course  in  this 
country  tl^ere  is  the  greatest  freedom  of  the  press  but  with  all 
of  that  it  does  not  exonerate  the  press  from  liability  of  crim- 
inal lible. 

3  Jormson  cases  354 
It  is  a  writing,  picture  or  sign  made  with  ma.licious  intent 


XIV 


G    R    I 


T    N   A   L 


LAW 


46 


toward  individuals. 

Now  g3ntl3me-n   5t    the   common   law    (you  are    all    familiar 
with   tha    s?ying   "I    diln't    s=,y   it,    but    if  I    did   say   it    it   is   true.") 
the   truth  of   the    libla   was   no   justification.      The  maxim  of  the 
common   law  was   tha   greater    the  truth   the   greater   the    lible.     ■■ 

Now  this    is   cnanged    by   statutory  or   constitutionalj'    amendments 
in  almost    every  state   in   the   union..      In   this   state    the  truth  of 
the    lible   is   a  completa    justification.      These   are    for   the    sole 
purpose   of  modifying   the    common   law   inije.      The    whole   theory  of 
our   jurisprudence    is   that    the   popart    is   judge    of   the    law  and    the 
Jiu-y  is   judge  of   the   facts.      But,    at -criminal    libe±   the   Jurors 
are    judges   of  both  law   and    fact.      Now  gentlemen  that    is    all   I 
have    to    say  about    offenses   against    the  person. 
O.FFENSK   AGAINST    PROPERTY: 

l-Arson, 
2- Burglary. 
Arson  is   the  malicious   burning  of  the    dwelling  house 
of  another  by  night    or   by   dgiy.      It   was    a  felony   at    the    cannon 
law    and  a  very  high  crime, 

1-The    offense   is   against    the   habitation  and   the  per- 
sonal   security  of   the    family.      It    is  not    the    destruction  of   the 
property  that    aggravates    the    crime,    it    is   the   danger  of  the    se- 
curity.of  the   family   that    is   punished. 

15  Wendall   152 

26   Mich.    106 
2-The   dwelling  house    is  any  dwelling  or   building  with- 
in the    curtilage, ■ used   as   a  part   of  the   residence.      It    includes 
tiie  house,    barn,    corn-crib,    shed   and  out    buildings.      By   dwelling 
house   I    do   not   mean  the   place   whera    a  man   sleeps.      The   corn-crib 
or   smoke   house    is  afi  much  of  a  dwelling  house    as  anything  else 
within  the    curtilage. 

The  curtilage    is  merely  an  imigana.-y   line   sorrounding 
the    residence   and   those   buildings  used  in  connection  with  and 
as   a  part    of    the   residence.      The   house   must    be    completed   and 
ready  for   occupancy  and  not    abandoned   or  unfit    for  habitation. 
It    is  not   necessary   that    there    should  be    anybody   in  the   house 
at    the    time    the    fire   occurred.      The   fact    that    the    family   happen- 
ed to   be    away  does   not    clxinge   the    question,    but    if   it    is   a  house 
that    has   been  abandoned  and  is  not    fit    for  occupancy  it    ib   not   a 
dwelling  house    in  the    sense   that    I    have  used  the    term. 

20   Conn.    245 

15  N.Y.       153 

November   14-1902. 

--0 — 0--0 — 0--0--0--0 — 


O  •••  V-   -o- 


C   R   I    I'   I    N   A  L    •     L   A  V/ 

XV  L  E   C   T   U   R   E     XV  47 

oOo 

Now  at   th3   close   of  the    last    lecture  we   were   discussing 
the   general   question  of  offense   against   the  property,    anfl   first   of 
all   had  taken  up   the   offense    against   the   habitation,    and'next    in 
discussing  the    subject   of  arson  we   had  given  you  some   ideas  of  the 
question  of  curtila'^a.      If  a   barn  be    separated  from  the  house   by 
a  hi  ::hway   the    barn   is  not   \vithin  the   curtilage    so   that    the    burning 
would  not    be   arson.         Wliat    would  ij.    be?      At    the   present    time   in 
every   state    it    would  be    statutory  arson.        At   the   commoii  law  it   was 
not    arson   to    burn   a  bam  that   was   separated  from  the   house   by   a 
highway   for   the    re  "-son  that    the   barn  w-s  not    within  the    curtilage* 

36   Mich.    309 
43   Ala.       17 
26   Ohio    St. 420 
T})3   fourth  proposition  vri. th  reference   to   c^jrtilage  is 
that    there   must    be    a  bixrning   -    some  waste  m^ast    take  place   in   the 
fibers  of   the   vrood,    however   slight. 

\^lh-it   is    the    difference    between  arson  and   the   attempt   to 
commit    arson?      Hov;  far   must   a  man  ^o    in  order   to    be   guilty  of 
arson'  instead  of  an  attempt    to   commit    arson?      It   has   been  some- 
times   said  that    the    sim.ply    sm.^kin^   of   the    side   of   the   house   would 
amount    to   arson.      A  man    -.would  be   guilty  criminally.      Tliat    is 
not    quite   true.      The    Courts  have   fina31y   decided  that    some  of  the 
fibre   of    the   wood  must    be   charred. 

30  Tex.   346 
110  Mass.  403 

Bishop   "Statutory  Crimes      s   310 
5-3urniriT  one's   own  house    is  not   arson  nor  was   it    an 
offense    at    the    common  law,    for   you  see   in   the   definition  that   I 
gave   you  was   the  malicious   burning  of  one's  house    by  .another.'    The 
burning  of  one's  own  house   is  now   statutory  arson. 

2  Pickering  325 
a-A  husband  who    biirns   the  house   of  his  wife  which  they 
jointly   occupy   is  not   guilty  of  arson  at   the    common   law.      The 
chief  ingredient   of   this   offense   is   an  offense   against   the  habit- 
ation and  if  he   lives   there    it    is  his  dT.elling  house,    even   though 
he   has  not    the    leg^l   title. 

26   Mich.    106 
Now  this  has    been  changed  by    statute   in  most    states   and 
it    would  be   kno^-n  as   statutory   arson.      I    give    you  the    conmon   law 
arson  and   then  --ive    you  the    statutory  chaiiges. 


XV  C    R    I    U  I    N   A  L        LAW  48 

b- \  Raversioner  or   Remainder man  may   be   guilty  of  arson 
in  burning   tlie    barn  or  house    in   the  possession  of  his   tenant.      He 
is   burning  the    d^Aielling  house   of   another  even  thcugh  the   hoTxse    is 
his   because   it   is   an  offense   against   the  habitation  and  not    the 
destruction  of  propertyr 

May'?   Grim.    Law  61 
•An  occupant    ri,n:htfully  in  possession  cajinot    be   guilty  of 
arson  if  hf)    burn  the  house,    that    is,    a  tenant    at   the    common  law 
could  not   jje   g^oilty    of  arson  if  he   burned  the  house   of  his   land- 
lord. 

54  Vt.    8G 
A  tenatn   in  occupancy  of  the  premises  has  possession, 
and   if  he    burns   the   house   he   is   not   guilty  of  arson  but   if   a   ser- 
vant   burns   the  house ^of  his  master  he   is  guilty  of  arson  because 
he   has  not    the  possession.  .--    . 

2  East      P.  :.1027 
6-In  arson  a   specific   intent   to   burn  is  not   required, 
a  general   intent    is    si^fficient.      If  one  with  felonious  intent    sets 
fire    to   his   own  house   whereby   the  hoiose   of  another  is   burned  he  > 
is  guilty  of  arson  of  burning  tl;e   other  house   even  though  he   did 
not   have    the    intent   to    burn  it.      It   is   said,    however,    that   dropp- 
"i  .ig  a  match  accidentally  by  one  who   is    stealing  on  shipboard    (that 
iij   statutory  arson)    whereby  the    ship  is    set   on  fire   is  not   arson. 

13  Cox  Crinu    Cases    550 
a-C^reater  evil   in  the   intent    is    r^jquired  than  in  most 
crimes   of   this  .grade,      A  burning  down  by  chance   or   negligen- 

ce   is   not    arson. 

2  Bishop      s   15 
'  b-If  one   intjnd  to   commit   a  felony    (as   where   one  goes  in- 
to  a   barn  with  the.  intent    to    staal   a  horse   and  while   there   strikes 
a  match  which   causes  the   barn  to   burn)    but   in  executing   it   burns 
the   house    of  another   by  mistake   he   is  guilty  of   arson.      It    is  said, 
however,    that»  if  he   only  intended    to   comn-dt   a  misdemeanor,    and  by 
accident    burns    the   house,    it    is  not   arson,    -   but    I    think   that   the 
bet^. er  rule   is  that  it   is  arsouo 

28  Ala  30 

2  Bishop      sl5 

Contrary   18  Johnson   115 

49   Alabama     30 

BURGLARY. 

We   will   take   up   first   of   all   the    common  la-.v  burglary. 
BURGLARY  is  the    breaking  and  entering  of  the   dwelling  house 
of   another,    in  the   night    tim.e,    with  intent    to    commit    a    ^eloi^y 
therein.      Every  word  of    that    dofinition  is   important.      1-There 
T.ust    be   a   breaking,    3- An  entry,    3-The  entry  of  a  dwelling  house, 
4-Of  another,    5-It  must    be    in  the   night    time,    and,    6-It  must   be 
with  the   inter. t    to    commit    a  felony  therein.      The   dwelling,    of 


r    .'. 


>  « ,»',vr ;  •  ;> 


XV  ^  .  C    R   I    ',!  I    M   A   L        L   A  W  .49 

course,  must  be  a  place  of  actual  residence  or  habitation  or  some 
buildin;^  within  the  cioi'tilage.  If  a  man  breaks  into  a  store  or  a 
bank,    it    is   now  called   burglary.       -VelL  it    is    statutory  burglary. 

43   Ala.     17 
VJhat    has   been  previously   said  in  regard  to   the   dwelling 
house  and   the   ciartilage   applies   to   burglary.      Curtilage   is  the   same 
in  burglary   as   it    is   in  arson.      At    the   common   lai,'   there   vres  a.  hold- 
ing that    burglary  was   the   feloniously   breaking  and  entering   a   chur- 
ch in  the    night    time   with   the    intent    to  COTmit"a   felony. 

2   Bishop   104 
1-A  breaking  is  necessary,    but    the    lifting  of  a   latch- or 
the   turning   of  a   lock   or   opening  a  window   is    sxifficient   providing 
some    force    is  used. 

8  Pickering   354 
•    a-If  the  house    is    secured  in  the   ordinary  way,    any  force 
used  is   sufficient,    but    it   must   be    secured   in  the   ordinary  way  or 
there    is   not    sufficient    breaking.      Removing   an  iron  grating   is 
sufficient    breaking. 

22  Mich.    229 
Or   entering   an   inner   door   even  though  the   outor  door  be 
open,  85   Perm.    State    66 

So    it    is   introducing   a  knife    between  the   lower  and  upper 
sash.  44  Mich. ._  305 

The    raising   of   a  transom  that   hangs   by  hinges. 
b-But   a   slight    opening  is   regarded   as   an  invitation  to 
enter.      That  proposition  always   seems   to   me    to   be   a  little   bit 
strange.      If  a  person   sees   a   door   ajar   ana  walks   in  he    is  not 
guilty  of   burglary;    or   if  he    seas   a  window  lifted  up    and  he  goes 
in  it    is   not    burglary. 

105  Mass.    588 
c-A  constructive   breaking  is    sufficient   where    fraud  or 
threats  were    substituted   for   force.      Fraud  may  take    the   place   of 
force   and  where   one    obtains   admission  to   a   dwelling  house   through 
fraud  without   any   breaking  and  enters   with   the   intent   of  conmitt- 
ing  a  felony  he   is   guilty   of  burglary. 

2  East    P.C.    486 
85  Penn.    St.       54 
T}:e    breaking   out  of   a  house    that   ha  been  entered  without 
brealcing   is  not   a   sufficient   breaking  within  the   meaning   of  the 
common  law,    but    by  every    state   in  the   union  it   has  been  changed 
by   statute    so   if  a  man  now  goes   itito   a  house    and   is   detected  aiid 
breaks   out   he   he   is    guilty  of  burglary. 

51  Georgia  285 


.  «'• !  ■ 


;;*?■. 


XV  .  C    R   I    M    I    N   A   L        L   A  W  50 

c-There   m^ist    be    a   br9aking  of   soma   part   of  the   house 
excluding   entrance,    as    t/:3   breaking  of   an  outer   shutter  is   held  not 
to   be    breaking  because   the    shutters   are   not    to   exclude   ent    ranee. 

5   Ala.    643 
Nor  is    the   breaking   open  of  a  trunk,    press  or   locker 
suffici  ent. 

■   2   Bishop   98 
IT-There   must   not   only   be   a  breaking  but    an  entry  of  the 
person  or   some   instrument   used  in  accomplishing  the    felonious  in- 
tent.     The   entry  of  a  hand  or   finger   is  sufficient,    also    the   thru- 
sting  in  of  a  hook. 

a-If  only   an  instrument   used  to   effect    the   breaking 
enters   that    is   not    a    sijfficient    entry, 

4    Cox    C.  ^     398 
b-Shonting  a   ball   through   a  window  is   on  principle   a 
sufficient    breaking  and  entry. 

2   Bishop    94 
III-Now  both    the    breaking   and  ent-^ring  must    occur   in   the 
night   time.        What    is    the   night    time?Night    time   is  not   determined 
by  the    set    ing  and  rising   of   the    s\xx.      If    there   is   sufficient    sun- 
light   from  which  to   reasonably  discover  ons's  features   it   is   day- 
time,   and  the   offense   is  not   bm^glary, 

19   Cal.    578 
Bishop   Statutory   Crima   27G 
The    statutes   of  most    states   fix   th'3   ho^ir    so    as   to   make 
it  more    definite.      In  Mass.    ni^rht    time,    by   statute,    is   one  ho^Jir 
after    sun   set    and  one   ho^^r   before   sun  rise.      The    breaking  may   be 
on  one   night    and  tine   entering   on  another,    but   both  must   occur   in 
the   night    time. 

Ill  !/.ass.    395 
IV-An  \anlav;ful  breaking   and  entering,    unless    there   is   an 
intent    to   commit    a   felony   therein,    is   not    burglary.      Tl?9   breaking 
and  entering  of  a  house   vd  th  the   intent    to   commit    adultery   is  not 
burglary    at    the   common   law, 

15  Vt.    551 
(Theoretical] y)  7  Mass.    245 

Burglary   is   an   at'.empt    to   commit    a   crime    and  the      rulew 
of  attempt    apply.      Voluntary   drunkeness    (by  incapacity  of  having 
an  intent    to   commit    a   felony)    is  a  good  defense   to   burglary, 

2   Bishop      3113 
The   entering    ^f   the    duelling  house   of  another  to    steal 
his   goods,    v/hen  he   has  none    there,    is   a   burglary. 

December  4-1902 

— 0--0--0--0--0--0--0-- 


C    R   I    "   T    "    ^  L        LAW 
XVI  LECTURE        XVI  51 

oOo 

larceny: 

Tbis   is   tha   next   offense    against   property   and,    Lerceny 
is   the   offense   of   taking   and   carrying   away  of   the   roods   of   anoth- 
er with  the   intent    to   deprive    the   owner   of  his  ownership   therein.  ■ 
Every  word  of   that    definition,    yiu   se  i ,    conveys    an  idea  and  if 
you  lose    a  v/ord   your    definition  will    be    inc'on^lete. 

How  the    fact    that   onet-kes   the    goods   of   another   and 
carrie.i-    them  awny   does  not   make   up   the   offense   of   larceny   -    there 
must    be    the    intent    to    steal,    in  other     ords,    to   deprive    the   •■>wner 
of  his   O'vnership   in   the   goods.      To   untie    a  hovse    that    WiS    standing 
hitched   in   the    street    and  drive    to   Ypsilanti    ^nd   then   turn  him 
I'ose    to    tr5t    home    is   not    larceny.      It    is   now  pijinish-ible   by   stat- 
ute . 

At    t  h5    cofhmon   law,    Larceny   was    divided   into    GRAND   and 
PETIT,    and  when   you  a>  e    reading  upon   the    subject    of   larceny   in 
the    books   you  will    see   these   terms.      At    the   present    time   the   dis- 
tinction is  practically  meaningless.       3y   Grand   Larceny   they  gen- 
erally meant    a   felony,    and  Petit    ^arceny  was   so    small   in  am 'unt 
that    it    amounted  to   a  misdemeanor.      It    is    an  offense   agsinst    the 
■pioperty   and   the    mnre   property   you  injure^the   greater   the   offense. 
These   terms   are    now  used   but    the    Supreme    ^ourt     -f  Michigan   s=:id 
that   we   now  have   no   Grand  Larceny  ^r   Petit    T.arceny.      But,    at    the 
common   lan'if  a  pe^-son   stole   anything  under    I2d  it   was.  petit    lar- 
ceny;   if  it    exceeded  I2d  it   was   grand   larceny   and  punishable   by 
death.       In   this   co-untry  the   dividing   line    is  usually   %j25.00.      If 
a  man   steals  linder   1 25. 00   it    is   a  misdemeanor   and  punishable    by 
a   jail    sentence,    and  if  he    stole    over   that    amount    it    is    a    felony 
and  punished   by   state    imprisonment.      Under   !*i;25. 00    the   Justice   of 
the    Peace   has   the   original    trial,    but    if   it    is   oer   $25.00  the 
Justice   can  only  examine   him  and  bind  him  over   to    the    ""ircuit    for 
trial.      You  see.it    is   tje   value   of    the   property   stolen  which  de- 
termines  the    question   of  jurisdiction. 

Larceny  is   again  classified  into: 
a-Simple 
•      b-compound 

You  will    find  these   terms   in   your   reading,    but    the  only 
distinction  is    that    compound   larceny   is    simple    larceny   accompan- 
ied  by   ag':ravated   circxamstances;    as   for  instance,    stealing  from 
one's  person.      You  perhaps   have   read   about    compound   fracture   in 
medical   works    -    this   is   where    the   bone    breaks    through  the    skin   - 
it    is   an   aggravated   fracture. 


XVI  CRT    ;     I    ^-    A  L     .   L   A  W  52 

SIMPLE    LARCENY: 

I-There  must    be    a   taking   and   carrying   away.      This   in- 
volves  a   trespass,    of  course,    or   its   equivalent.      There   need   be 
only  a    chanfje   of  place    effected   by   the   wron'^;  doe.     (    a   change   of 
place,    howevijr   slight)      This  must    take  place   or  there    is   no   tak- 
ing  and  cari-ying  away. 

4   Denio   364  .     . 

2   Bishop      s797 
50   N.Y.     518 
In   that    Denio   case   the  defendant   undoubtedly   intended   to 
steal   a  horse.      He   went   into    the   field   ^nd   coaxed  the   horse   part 
way  actoss    the    field  with   some    com.      He   was   ar   ested   and   it   was 
urged   that    the' e  had  not    been  any   taking   or   carrying   away,    but 
the    court   held   that    the  property  was   sufficiently  under   the    con- 
trol  of  the    defendant    so   that    the    taking    and  carrying   away  was 
complete. 

65  N.  C.    395 
45  Iowa  48 
Manual    seizure,    that    is,    the    laying  on  of  hands   is  al- 
ways  essential,    and   the    sho-^ting   of   an  animal   is   n   t    sufficient 
unless    you  carry   away   the   carcass   and    then   you  would   be   guilty  of 
larceny   of   t  he    carcass   of   the    animal,    in  other  words,    there   must 
be   after   the   killing   some    slight    removal   of  the   aninial. 

47    Cal.    103 
Il-One   having  custody   but   not    the    legal   title    of  a   chatt- 
el may  be   guilty  of   larceny.     (The   only  wgy   that    you  can  draw  a 
distinction  between   custody  and  possession   is   by  illustration.) 
A   servant    who   appropriates  property  in  his   custody  to   his  own  use 
is   guilty  of   larceny.      There    is   what    the   law  calls    a  constructive 
taking   an-    carrying   away. 

99   Mass   428 
26   Ind   101 
I'fhen  I    say  that    one   is  not    guilty  of   larceny   I    do   not 
mean   to    say   that   he   is   not   guilty  of  embezzlement. 

15  Wendell    581 
If. a   bailee   appropriates   the   property  of  the   bailor   for 
his   own  use   he    i  s  not   guilty   of   larceny   but   may   be   guilty  of  em- 
bezzlement   because   the   bailee   always  has   the   possession  and  so   he 
cannot    commit    the    crime   of   larceny.      He    stands   in  a  different   po- 
sition than  that    of    the    servant. 

a-The    finder   of   lost   goods  who   has   reason   to   believe 
that    inquiry   will   disclose    the   ownership   is  guilty  of  larceny   if 
he   appropriates   them  to   his  o^yn  use,    in  other  words,    a  man  may 


XVI  CRIMINALLAW  53 

find   goods   and  go   off   with  them  and   be    guilty  of    larceny.      It    is 
his  duty   to    find    the   owner  if  he    can   do    so. 

116   Mass.    45 
But   as   I    have    said  to   you,    when  we    discussed  the    sub- 
ject  of  criminal   intent    the   finding  and  the   intent    to   steal  must 
concur   in  point   of   time.      If  he  i'inds    the  goods   today  without    the 
intent    to    appropriate    them,  to   his   own  use   and  ^Tmor row  "wakes  up 
with  a  disposition  to   keep    them  it    is   not    larceny. 

29   Ohio    state    184  * 
Where    the  goods   have    been  mislaid   arid  one   knowing  of 
the    fact    appropriates    them  he    is  guilty  of   larceny.      Whbt    is   the 
difference    between   lost    and  mislaid  goods?        If   you  50    along   the 
street    with 'some  money   in  your  pocket,    and  unbeknown   to   you  it 
slips   through  a  hole    in   the   bottom     of   your  pocket    you  lose    it, 
in  other  words   it    ig    lost   money;    but    suppose    you  take    your  wallet    . 
into    a   store    and   lay   it    down  on   the   counter   and  go   away   leaving 
it    there,    that    is  mislaid  goods,    and  not    lost.      What   is    the    value 
of   the    distinction?      If  a  person   loses   an  article    and   the    servant 
of  another  finds   it,    that    is   the   property   of  the    finder  -    it    is 
his   against   the  world  except    the   owner;    but    if  goods    a^e  mislaid 
and  a  clerk   finds   them  the  property  in  the   goods   is   the  property 
of  the    employer. 

6   Cox'    CG   415 
III-The   FELONIOUS   open   taking  without    concealment    is   never- 
theless   larceny*      There    is   a  popular  impression  that   unless   one 
indulges   in   stealthiness   he    is  not    a   thief   -   that   is   not    true. 
Stealth  is  not    an  essential   ingredient    to    crime. 

41  Conn   590 
IV-Now  as   I    have   said   the   taking  must    be    by  a   trespass 
involving  some   physical   force   or   its   legal   equivalent. 

2   Bishop   804 
Trespass   involves   the   idea  of  taking   of   the  property 
against   the  will   of  the   owner. 

2   Bishop   799 
a-A   delivery   by  mistake   may  be    sufficient. 

12   cox'    CC   260 
b-Possession  obtained  by   fraud  am-^unts   to   larceny 
when  only  the   possession  and  not    the    title  passes. 
2   Bishop    812-813 
He    states   a   case    there   where    "Three   Card  Monte"   men 
were    indicted  for   larceny  for  money  obtained   from  an  old  man  on 
the   cars.      The   indictment   held  against    them.      It    was   a   fraud   and 
they  got   possession  of  his  money  through  conspiracy. 

December   12-1902. 

--O--O--O--O — 0--0--0-* 


;■;.,         i  '  .1. 


G    R   I    lA   I    N  A  L 


LAW 


XVII 


LECTURE 


7^711 


54 


oOo-- 


cussing 
which  I 
capable 


I    thiiilt   when  I    ^'alosed  the    last    lecture    I    was   dis- 
the    subject    of   lavneny   and  had   reached   the   p-^iiit    at 
wanted   to   ca]l    your   attention   to   the   kind  of  property 
of  being    stolen. 

V-I    did  call    your  attention,    of  course,    in  the   def- 
inition to   the    fact    that    larceny  involved    the    stealing  of  goorls 
and   chattels   from  another,    but   whst    is   the   meaning   of   "f-oods 
and   Chattels?"      It    is   not    "Iw-.ys   quite    clear. 

a-All   personal   property  of   intrinsic    value    is   sub- 
ject   to    larceny=      Mow  I    will    give    you  some    examples:      Milk 
t-5ken   from  a   ccv;  or  wool  pluckeo   from  a   sheep. 

Z   Carr   &  Payne   423 
Turpentine   collected  from  a   tree, 

11   Iredell   70 
3as  drawn   from  a  pipe, 
4   Allen   308 
b-At    the    corfL-non   law  chosen   in  action  w^re   not   capable 
rif   larceny.      It   was    an   invisible,    intangible    thing  and  was  not 
property   in   the    sense    in  which  the    term  "^oods   and  Chattels" 
is   used,    but    by   the    statute?   of  most   of  our    states  the    steal- 
ing of  the   evidence   of  the   chose,    either  note   or   bill   of  ex- 
change,   is   larceny  of   the    chose   in  action. 

May's    C.L.     160 
c-V7ild   animals   in   a   state    of   nature    cannot    be   the 
subject    of   larceny,    but    after    they  ha\'S   been   re-claimed  and 
brought   under  control    tl'iey   are    the    subject    of    larceny. 

8   ^Tray  497 

3  Dutcher  N.J.    117      Oyster   Case 
At    the    common  law,    base    animals  n^^t    fit    for  food, 
such  as   dogs   and   ferrets   were   not    the    subject    of  larceny. 
They   are   called    base    animals    because    they    are   not    fit    for  food. 
It    was   only  those   domestic    animals   that    'A'ers    fit   for   food   that 
were    subject    to    larceny. 

Rus--ell   5:  Ryan  Eng.    350     Ferret    case 
26   Ohio    -^t.      400 
The  modern  doctrine    is   that    all    tame   anim.als  of  value 
are    subject    to   larceny,    even  though  they    are   not    fit    for   food. 

86  N".  Y.    365  Dog   Case 

41  Ark.    479 
In   that   case    the    defen  dant   had   stolen  a   bird  cage 
and  a  mocking   bird  ana    it   was   contended  that   he    could  not    be 


:-::^,'ii.  c  R  i  !■'  i  n  a  l      law  ^^      56 

h-^la  guilty   of   lircany  of   the  rriOckiir^   bir-    because   it    wss  not 
fit    for   food,    but    the    ■•^onrt   held   otherwise. 

At    t  b-3   present   time    throughout    the   United   "States   dogs 
are   the    .subject   of   lax-ceny.      The    fact    that    they  are   taxed  should 
be    c  onsiderer-i    as-    one   reason  that    they  are   property.      Tne  most 
peculiar    thing   in   th.e    law   is    that   a  "^.an  might    bring   trover   for 
a   dog   and    recover   but   no  man  could    steal  a   dog.      It    was  not    the 
subject    of    larceny   but   v/as   the    subject    of  a   civil   action  in 
trover. 

d-Realty   and   things   attached  to   it    are   not    the    sub- 
ject   of  larceny.      After    the  prosper  ty  has    been   severed  from  the 
real    estate,    of    coarse,    it    becomes    the    subject    of  larceny. 
You  -understand    that    real   estate   includes   not   only   the    soil    but 
whatever   is    growing  upon  it   and    also   involves    the  minerals   in 
the    earl:':,    svch  bs   coal   and   le?id,    but    once    severed  from  the 
real   estate   they  are    the   subject   of  larceny,    but    the    severance 
and  thje   felonious      carrying   away  must   not    be    parts   of    the    same 
act.      If   you  go   to    a  g -Id  mine   and   dig   r^ut    a  nugget   of  gold 
and   carry   it    away   that    is  not    larceny. 

'34  N.  C.  619 
4  Black.  232 

11  Ohio  r.t.  104 

/vn   illustration  is    this   -   if  you  take    an   apple   off 
a  tree    and  eat    it   up   that    is  not    larceny:      If  you   shake  an  apple 
off  a   trei   and  pick    it    v^p   at    once    this  is   not    larceny,    but    if 
you  ,^0   into    an  orchard   and  pick  ivp   a   wind-fall    and   car.-y  it 
away  th?t    is   ;^arceny. 

If  minerals    are    severed  from  t.''.e   earth    (gold  or   sil- 
ver)   or   crops   from  the   lands   and  immediately   carried   away  the 
offense    is   not    l?J'ceny    rat    if  what    is    severed   is   allowed  to  re- 
main on   the    land   of   the    ^vnier    (thgt    is   abandone ''    temporarily) 
and    then  he   returns   and    carries   it    away  he    is    -loilty   of   larceny. 

8  Nev.    262 

12  Oox'    CO    59 
26   Law  Rep.    297 

e-Now  this   principle    that    things   fixed   to   realty   can- 
not   be    stolen   does   not    apply  to   things   fixed   constructively. 
These   m.ay   be    taken  away   and    stolen,    in  other   words,    the  prin- 
ciple   V  ;)at   the    severence    and  carrying   away  must   not   be    the    same 
transaction  does   not   apply   to   cases   of   taking  fixtures   that 
are   only  constructively   fixed,    such  as  gas    fixtures,    etc.,    they 
are   the   subject   of   larceny. 

11   Ohio    St.    104 

14    B'Jsh    31 


XVII  C    R    I    ?■!   I    II   A   L        L   A  W  57 

VI-A  thing;   stolen  must    be    of   some   value,     (of   course 
in  the   aye   of   the   law. 

A  man   stole    a   bill   of  ex'-han.'re   worth   several   dol]r-.' 
ars   and   he   was   arrested   and   indicted  on  the    charge   of  larceny. 
There    vrere    tv;o    counts   ag='inst   him  -   one   v/as    for   the   value   of  the 
bill   of   exchange,    that    is    the   chose,    and  the   other    count   was 
for  stealin,-;   a  piece   of  paper   to    the   value   of  one    cent.      It   was 
held   that   he   could  not    be   convicted  of    stealing   the  chose,    but 
he  was  properly  convicted  on  the    second  count   for   stealing   a 
piece    of  peper  of   the  value   of  one    cent. 

I    Car   ington  &  KirwT.n's  .'T.  P.    725 
6   etox'    CO.    504 

In  this   case   title    deeds      ire    not   the    subject    of   lar- 
ceny  and    at    the    early  common  law    they   could  not    be    stolen  be- 
cause   they  were    thought    to    be   a  pat-t  of   the   real    estate.      This 
is  only   a  historical    fact    ana  va]l   not    trouble    any  one    of   you. 

There   must    be    in  larceny:      1-A  specific   intent    to 
steal.      I    think   I    told   you  that    there   were    two   intents   in  lar- 
ceny:     one   was   an   intent    to   trespass    and  the   othe  v/a^   an  intent 
to    steal   and   that    the   intent    to    steal   called   for   a    specific 
int  ant.      I    also   told   yoi.i   that    in  tlie   crime   of  voluntai'y  drunnk- 
eness   that    it    was   a   good,  defense    to   the    crime    of   larceny.      Now 
that    is   all   that    I    care    to    say  upon   the    subject    of   larceny,    and 
the   next    crime    akin   to    larceny   is: 
RECEIVira    STOLEN   GOODS: 

This  was   a  mis-deraeanor    at    the    comn.on  law.      It    is 
punished   by    statutc-s   of   every   state    in  the   union  and  is   gene>."- 
ally   punished  as    a   felony. 

The   offense   consists   in   receiving   stolen  ,3oods,    know- 
ing  them  to   have    been   stolen.      At    the   cornnon   lav;  it  was  only 
an  accessorial   offense,    but    at    the  present    time    it   is  punished 
everywhere,    not    simply  as   an   accessorial  offense,    out    an  inde- 
pendent   substantive    crime,    and   for    that    reason  the    rule   that    you 
cannot   convict    an   accessory  mitil    you  have    first    convicted   the 
principal  does   not    apply  to   the   receiver  of  stolen  goods,    but 
yoi  understand   that    I    am   speakin,^:  only  of  conviction.      The 
first    thinj-   to   prove    against    the   person   ciiar-Ted  with  receiving 
stolen  goods   is   th>at    larceny  has   been  commit   ed.      Unless   you 
can  prove    that   goods   have    been   stolen   there   is   no   use    submitting 
the    question   as   to   whether   or   not    he   has   be ^n  guilty  of  receiv- 
ing  stolen  goods. 

Harris   0.  L.    131 

0|jie    cannot    be   guilty   ^f   receiving   stolen  goods   from, 
a  wife,    which   she   st'->le    from  her  husb^tnd. 

May's   C.L.    197 


X\TI  C    R  I    M  I    N  A  L        L   A  W  58 

II-The   goods  must   have    been  received  into   the   actual 
possessioii  of   the   accused.         No    intent    to   receive    them  wil]    an- 
swer  the  purpose.      But    after   all,    r;ent lemen,    manual  possession 
is  not   necessary.      There  may  be    actual   or   constructive   receipt 
of    the    atolen  goods. 

17   lov/a   149 
6    cox'    0.0.     554 
4    Cox*    C.C.    412 
IIT-The    acciised  must   have   kncwi   at    the    time   he   received 
the   goods   that    they  were    stolen  goods.      His   learning   that    after- 
wards  is  not    sufficient. 

Tlar-is'    C.L.    181 
IV-Th3   goods  must    have    been  received   to   defraud  the 
owner   thereof. 

I    Parker's   C.C.     564 
It    is   not    necessary   that    they   should  be   received   for 
profit    to  the   pei-son  receiving   them.      It   is   enouijh  that  he   re- 
ceives   them  for   a  purpose   to   defraud  the  o^^ner   of  his  ovmer- 
ship   therein. 

117  Mass.    141 
V-The    goods  must    be    received   without    the   consent   of 
the  ovmer. 

6   Cox'    C.C    449 
VI -In  an  indictm.ent    for   the   crime   of  lar- 
ceny a   count    for  receiving   stolen   goods  may   bo   joined  and   the 
accused   convicted   according    to  the   evidence,    that    is,    you  can 
charge    the    accused  with   larceny  and  also  with  receiving   stolen 
goods   knowing    them  to   have   been   stolen  and  he   can  be   convicted 
on  either   count    according   to  the    evidence. 

VII -The   receiver  may  be   convitsted  in  one   state    though 
the   goods   were    stolen  in  another.       fluppose   he    should   steal  goods 
in  Ohio   and   bring    them  over  here    and  give    then  to    a  man  here   - 
this  man  may  be    convicted   of    receiving    stolen  goods. 

Vlll-Upon   the    subject    of   larceny  and   the   receiving  of 
stolen  goods   there    is   one    bit    of  evidence    that    is  generally 
fo\ind  about    which  I    want    to    say    a  few  words,    and  that    is,    that 
REGE'^TT   PC '^. SESSION  of   the   goods   stolen  is  evidence    that   the   poss- 
essor  stole   them  or   received   them  knowing   that    they  had  been 
stolen.      It    is  not    conclusive    at    all    but   it    is   simply  evidence. 
Now  gentlemen   that   evidence   of  recent   possession  is   very   strong 
or  very  weak   according   to    circumstances.      If  the  possession  is 
very  recent    then  the    circumstances   are    strong  if   the    chattel 
taken  is  one    that    has   not    passed  from  hand   to    hand. 

December   lS-1902. 

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.;:  oo: 


CRIMINAL        LA  W 
XVIII  LECTURE        XVIII  59 

oOo 

I    had   finished  what    I   had  to    say    with  reference    to    the 
crime    of   L  rceny   and  the   crime   of   receiving   stolen  goods  know- 
ing them  to    have    been   stolen.      The   next    crime   and  one    ekin   to 
those   two   is:- 
EMBSZZLEMEMT : 

And   it    is    the    fraudulent    appropriation  of  another's 
property   by   one   v;ho    nas    the    lawful   possession. 

99   Mass.    423 

you   se      this   is   to    be   distinguished    from  larceny   for 
the    reason  that    in   larceny   the   possession   is   obtained  wrongfully 
but    in  embezzlem.ent    the   possession   is    lawfully  obtained.      The 
felonious    intint    or   the  morsl   turpitude    is    about    the    same    in 
each   case    but    the   crimes   are    quite    different. 

1-Embe^zlement   was  not   an  offense   at    the   common  law. 
It    is  pur-ely   a   statutory   crime   in  almost   every  state    and   being 
a   statut    ry  crime   and   the    state   being   in  derogation  of  the 
common   law  the    statutes    are    strictly   construed   and   you  must 
examine    the    statutes   and  notice    the   wording  of  them  in  your   own 
state    somewhat    carefully  in   case    you  have    a   crime   of  embezz- 
lement  under   investigation. 

2- This   crime    involves   a  careful    distinction   between 
custody  and  posvession.         I   have    already   refer   ed  to    that    dis- 
tinction two   or   three    times  and    tlTe   only  way   to   get   acquainted 
with  it    is   for  me    to   keep    referring   to   it.      Now  in   this   crime 
of  embezzlement    the    accused  must   have   had  possession  -    simple 
custody   is   not    sufficient.      Many  men  have    been  indicted  on  trie 
charge    of   cribezzlement    and   then  acquitted   because    the    facts 
showed   that    there   was  no  possession. 

Kawk.    P.C.     1   c    33 

a-Under   the    common  law  many  wrongful   appropriations   of 
money  am-ainted   to    larceny  which   are   now  regarded   as   embezzle- 
ment.     You  see    the    common   law  was   going  to   punish   the   man  that 
was   guilty  and   there    being  no    crime   of  embezzlement    they  would 
punish  him   for   lax-ceny. 

May's   O.L.    97 

b-Money  delivered    to   a   servant    by   the   master   for   a 
particular  purpose,    if  converted   by  him,    the   offense   is   larceny 
because   he   simply  had   custody  and  did  not   have   possession. 

99   Mass.    430 
15  Wendell    147 


XVIII  CRIMINAL        LA  W  60 

If  money   is   delivered   to    a   servant    by   a   tMrd  parson 
to   be   deliv9x-3j    to   the  master   and  he   c-^nverts   it,    that    is   em- 
bezzlement. 

2   Leach   84] 

In   that    case   money  was  marked   and  handed   by   a  person, 
who   was   assiatin^   in  detecting   the   wronrr  doer,    to   the    servant 
to    see,    of  course,    v/hether   or   not   he    would  put    it    in  his  pocket 
instead  of   the    till.      '"'ell   he   put    it    in  his  pocket    so   you   see 
it   never   came    into    the   possession  of   the  master   and  he   was 
properly   convicted  cf  embezzlement.      A  teller  of   a   bank   or 
the    clerk   in  a    store,    who   after   business  hours   abstracts   funds 
is  guilty  of    larceny  because   the   funds  have    come   into   the   poss- 
ession of   the   master. 

104  Ivlass.    548 
116      "  1 

155      "  523 

3-The    statutes    speak   of  mis-ap^-ropriatio^   by   agents, 
clerks,    servants,    officers,    etc.      Now  these    terms  are   used  in 
the     sttutes   and   it    is  not    v?ry    satisfactory   in  ce'jard.   to    the 
meanin.'^   of  these    terms.      A   servant    or   clerk   usually  involves 
some    continuous    service,    so  may   an   agent,    but    an  officer  usually 
involves   some   public    employment    or   some    employment    as   -an  off- 
icer  in  a   corporation  neither  public    or  private. 

It    is    said   that    the    distinction  between  principal 
and  agent;    mastee  and   servant    is    that    the  principal   directs   the 
agent    what    to   do,    but    leaving  him  m.uch  discretion   in  the  matter 
whereas   the  .master  not    only   telJs   the    servant    what   to    do    but 
how   to    do    it. 

12   cox'    CO.     56 

Now  it    is    said   that    the   defendant    who    is   indicted  on 
the   charge    of    embezzlement   must   have   received    the   money  by 
virtue    of   his   ernp'loyment . 

Law  Rep.    G.C.    28 

That    case    is   one   in  which  the   owner   of  a   ship   tele- 
graphed or   otherwise   dir^icted   the  m?.3ter   of   the    ship   to    bring 
it   home   empty.       ^o   the   master   loaded   the  barge    and   stopped  at 
an  intermediate   port    and   discharged   the   freight    and  pocketed  the 
money.      He   was    arrested  on  the  charge    of   embezzlement,    but    the 
Court    held   that   embez   zlement   was   not    the   crime   which  he   was 
guilty   because   he    did  not   receive   the  money  by  virtue   of  his 
employment. 

Embezzlement    and  perjury   are    two   of  the    crimes  that 
are   most   difficult    to    establish.  Those    terms  of  clerk   and 


X^/III  C    R    I    ?■■:   I    N    A  L        LA  W  61 

a^'^ent    involve   usual]  y   tb3    relation  of   a    superior   an-^    an  infer- 
ior  ani   that    relation  m':;st    exist    wherever   the    t^rms   are   used. 
In  other  words,    the    tet-ms   do   not    include   what    ai^e   kan^^'n  in   the 
law   as   independent    contractors. 

9   Gr:ry      5 
4-ICmbezzlement    is   a   breach  of  trust    and  usually  poss- 
ession  IS   r'^ai-'ed   by  virtue   of    some    employment. 

51   Cal.    108 
14   Gray   62 
a- The   breach  of   trust   may   amount    to  more    than  a 
breach  of    contract     (but    you   see    you  must    be    careful    about   in- 
dependent  contractors    for   they   do  not    come   wit  bin   the    law  of 
embezzlement)    but    there   must    be   present    an  intent    to    defraud. 
Unless   this    intent    exists   t!'ere    is   no   embezzlement. 

35    111.     487 
b-Failure    to   account    for  moneys   according   to   con- 
tract   is   not    ei:-'.bezzlement.      sPnat    we    are    troubled  v/ith  in  embe- 
zzlement   is    that    you  must    draw  a    distinction  between  that    breach 
of  contract    with  fraudulent    int -nt    and    a  breach  of    contract 
which   creates   only   a   debt.      In  other  words,    it    is   said   that    the 
intent    and  the   design   to   cheat    and   deceive    the   owner   is   t  l-e 
gist   of   the   offeHse. 

6  2   Mich.    276 
139    111.     586 
Mow   th^t    completes    all    that    I    am   {join;-;;   to    say  upon 
the    ci-^ime   of    embezzlement    and  vri.ll   not    take   up   the   other   crime 
this    afternoon,    but    will   v;   it    until   those    who   are    absent    return 
fresh    for   the  new  work,    and  Gentlemen,    I    wish  you   all   ' 

A  J;TERRY   CT'RI'^TTvlAS 

AND 
A  HAPPy  NEW  YEAR 

December  19-1902. 


■0--0--0--0--0-- 


C    R    I    N'.   I    N    A   L         L    A  W 
XIX  LECTURE        XIX  62 

oOo 

At    the   close   of  the    last    lecture    we   were   discussing 
the    subject    of   embezzlement.      I    ought    kto   have    impressed  it 
upon   yo^ar  minds   that    embezzlement    is   one   of  the   m-^st    difficult 
cases   to  maintain  against    the    defendant    for   tha   re-.son   that 
there   is   alwsys  more   or   less   trouble    about    distinguishing  be- 
tween debt    and  actual   ev,bezzlement. 

^  ■.   FALSE  PRET^^.N-'^.S      -    ijid  that    is   closely   allied  v 

with  embezzlement.      Of   course,    in   youi-    study   of   "Ansori"    you 
at   once   think   of   fraud.         Well    I    am  discussing  not    the    civil 
side   of   the    subject,    but    the   cx^iminal    side.      But    there  may   be 
fraud  without    any   false   pretenses    (crim.inally)    but   there   can 
be   no   criminal   false   pretense   without    fraud.      One    is  punished 
by  criminal   proce   dure    and  the    other   is  righted  by  civil  pro- 
ceedure. 

Now  as  we   underst-nd  it,    criminal  false   pretenses 
are    statutory  offenses.      At    t^-ie    common   law   the  modern  idea  of 
false   pretenses   did  not    exist.      At    the    common   law   there   were 
false   pretenses   that    were   indictable    -    they  were   known   as 
"Cheats   by  false    tokens."      A  simple    false    statement   of   fact 
was   regarded  as   a  non-    criminal    lie. 

7    Johnson's   Rep. 201 

Loaded   dice,    false   weights   or  measures   were    false 
pretenses   at    the    cormion   law.      The    theory   seeme-v    to    be    that    if 
a  person  resorted   to   false   pretenses   through   some    token,    but 
if  he    simply  made    a  mi  s-st '^tement    as    to   his  property   that   was 
a  non-criminal    lie.         That    has   all    been  ch-^nged  by  the    stat- 
utes  of  both  England  and   America.      At    the   present    time,    as    a 
matter   of   fact   we   hear   very  lit. le    about    false   tokens. 

2   Bishop   415 

A  ?ALSE  PRETENSE   is   a   fraudulent   representation  of 
tlie   past    or    existing   fact    by  one   who   knows   it    not    to    be    true. 
In  criminal    law  it   must    be   made    falsely   by  one   who  knew  it    to 
be    false    and   such   as   is   calculated  to   induce   one    to  part   with 
some  thin";  of  value. 

1-It   must    be    distinguished   from  lar-ceny,    and  the 
distinction   is  one    of  importance.      where   one   obtains   a  piece 
of  goods    from  another   but   not    the   title,    through    false   pre- 
tenses he   is   guilty  of   larceny,    but    if  he   obtains   both  poss- 
ession and   title  he   guilty  of  the    crime   of    ">alse    Pretenses," 
and  not    the    crime    of   la\ceny. 


:/'IX  C    ft   I    .V   I    '-   A  L        LA  W  63 

2-The    criminal    inj-^rredients   of  false   pretenses   are: 

a-Ther3  must    be    a   f a] sa   representation  of   fact. 
A  f&i  se    supposition   as   to    quantity  or   quality- 
is  not  a   criminal   false   pretense.      A  false 
suposition  of  present    intention   is  not    an 
indictable   false   pret^ense. 
17  Mich.  466 

2  I'oody    (Eng)    254 

It  is  said  however  th^t  a  statement  of  opinion  may  be  under 
certain  circumstances  an  indictable  criminal  offense,  but  I 
doubt    it    very  much. 

b-The   pretense  may   be   express   or   implied   from 
conduct . 

7   Cac.    &   Payne    784 
The  giving   of  a   citeck   on   a   bank   where   the   giver   has 
no   f lands,    if  money   is   received  on  the    check,    it   may  amount 
to   obtaining  money  ujiri.er   false   pretenses.      This   is   a  very 
coirtnon  offense.      'le   p -etends,    impliedly,    by  his   conduct    that 
he   has  money  in  the    b^nk  wh3n  he   has   not.      Of  c-urse,    circiom- 
stances  must    govern   those    cases.      A  f^^lse   expression  of  opin- 
ion  as   to   value,    quantity  or    q   ality  is   not    a   false   pretense. 
Nor    is   fa?  S3   promises   or    false    st-=tements   of   law.      The   quest- 
ion of   false   promises   is   one    that    will   confront    you  before   you 
have   practiced   long.       A  false   pretense    involves   a   false    state- 
ment  of   some   fact    past   or   existing   and  a   false   promise    as   to 
the   future   is  not  criminal   in  any   sense   or   anywhere. 

49   V.o.     542 
2"   MY.    413 
A  pretense   which  is   true    is   not    criminal   even   tho^ogh 
the   accused   believed   it    to   be    false.      In  perjury,    if  a  man  in- 
tends  to    swear    to    a   lie    and  by  accident   he    tells    the   truth  he 
is  guilty  the    same    as   if  he   had  sworn   falsaly. 

3  Cai-   &  P.    420 

c-The   false   pre   ense  must   have   been  made   with  the 
intent   to   deceive.      so    a  false   pretense  mads    by  one    believing 
it   to   be    true   is   not    criminal.      He   must   make    it,    in  other 
words,    with   a   criminal   frame   of  mind  with  tlie    intent    to    de- 
ceive. 

7   riar.    &  ?.    354 
6   i.lich.    496 
d-The   false   pretense   must   have   deceived.      Not   on]y 
the    intent    to   deceive    but   must   have   deceived.      If   the    complain- 
ing party  was   aware   of   its    falsity   there   is   no   crime. 

76  N.Y,    '^-3 
lAav's   C.L.    ?e-.  113 


XIX  C    R    I    :,:   I    N   A   L        LA  W  64 

tTov;  I  said  to  you  that  th^a  false  pretense  must  have 
deceived.  That  is  trie,  but  not  only  is  it  true,  hut  that  it 
ouf^ht  to  have  deceived.  It  must  be  of  such  a  nature  that  a 
man  might  rely  upon.  The  old  rule  was  such  as  would  have  de- 
ceived a  nian  of  ordinary  intelligence  and  caution.  Lo-"d  Holt 
Scid  that  "One  man  is  not  to  be  indicted  be causa  another  man 
i  s   a  f oo ] .  " 

50   Ind.    473 

Well    that    is,    in    ''y  jud.^ment,    the    cor   ect    supposit-    ■ 
ion  of   the   law   y^t    there    is   an  element    of   truth  in  it.      It    is 
not    every  false   -p  C'i    ense    that    can   be   made   use   of  in  a   char^^e 
of  false   prQt)nses   whei-3    the  chai-^e   is    a  criminal  one.      There 
must    be    some    reason   for   believinf;  it    and   that    is    the    reason 
that    I    do   not    like    the    case   of  the    "Oun-ing  Woman. "      Any  one 
who   pays   a  curi'iin'^   woman  a  consideration  for  bringing  back   her 
husband  through  magic,    over  herfges   and   ditches,    is   not,    in 
my  judgment    far   from  being   a   fool. 

The  modern   rule   is    this   -"The   weak  minded    are   not    to 
be    left    to   the  mercy  of   the    strong."      Unfort^onately   there   are 
fools   in   the   world  who   are   not    responsible   for    tlieir   inent    1 
condition  and   they   are   not    to    b^   left    to    be   preyed  upon  by 
those   wlio   have    strong;3r  mine's.      The  modet^n  rule   is   that    the 
state   is   for   the  protection  of  the  weak    as   well    as    the    strong. 
The   only   inquiry   is,    "Did  tiii   pretense    deceive,    if   so    then 
whether  or  '^ot    it   ought    to  iiave   deceived?"      If  it    ought   the 
crime   has   been  committed. 

14   111.    34S 
1   Eng.    Law   .1-  Kq.     550 

e-The    false   pretense   must   have    defrauded.      Ilot    only 
deceive    but    it   must    h?.ve   de/'rauded  the  person.      '^omet'-'ing  of 
value   must   have    been  parted   with  in  reliance   upon  the   pretense. 

Thac    .    CO.    428 

It    is   not    necessary   that    the   false   pretense    should 
be   the   only   inducement    that    leads   to   the   fraud.      Of  course 
there   may   be   various   inducements   that    induce    tloe    fraud   and   the 
party  parting  with  property  nmy  rely  upon  one   k^r  or   the    other. 
It    is  not    necessary,    however,    that    the  false   pretense    be    the 
sole    inducement. 

3-Usually   the   property  parted  with  must    be    such  as 
is   subject    to    larceny.      Th-.t    would    depend   largely  upon  the 
wording   of   the    statute,    but    as   a   inile    the    ststute'^    are    fr'med 
in   such  a   way  as   to   include    the  parting  of   something   that    is 
the    subject    of   lai-ceny   -    "'^oods,    Wares   and  ^.Merchandise.  "      The 
obtaining  of  credit    on  account    is   not    sufficient. 


XIX  CRI"T^^AL        LAW  65 

Where   a  man  has   an   ac^o-'ont    and  he   obtains   an  extension  of 
credit   upon   the   false   pretenses   of  his   property,    he   i s  not 
guilty  of  making   false   pretensesc 

15  Iowa  412 
75  Wis.    490 

This  is  a  peculiar  case.  The  defendant  had  obtained 
board  and  lodging  for  a  considerable  length  of  time  upon  false 
stfetfements.  The  state  provides  punish-nent  for  false  pretenses 
wherever  one  obtains  " Goods ,  Wares  and  Merchandise  or  other 
property."  He  was  indicted  and  the  question  immediately  arose 
as  to  whether  he  had  reed  Goods  etc.  Of  course  he  had  receiv- 
ed plenty  of  food.  But  the  Court  held  that  it  was  not  receiv- 
ing  Goods,   Wares  etc. 

4-The    statue   usually  punishes   a   cheat    by  false   tokens, 
that    is,    the    statutes    are   usnally  declaratory  of  the    common 
law.      Now  under   these   false   tokens    "Tricks   of   the   Trade"    are 
generally  punished. 

2   Bishop    447 

One   of   the    tricks   thst   passed   through  the   courts 
is  the    selling  of  butler    and   cheese   by  false    tokens, 

5-False   pretenses   to   obtain  money   for   charitable 
piirposes    are   indictable. 

107   Mass.    486 
17   Wendell    351 

In   the   Mass.    case   a  man  went    into   a   town   and  pretend- 
ed to   be   a  minister   of   the   gospel    and  was   collectin.-    'jnoney 
for  foreign  missions.      He    called  upon   the  ministers  of   all    the 
churches  and  gatherec^.    together   quite   a   si-tm  of  money  and  Wcit 
away  with  it.      The   money  did  not   get    into   foreign  fields   very 
soon.      He   was    arrested  and  tried  upon  false   pretenses.      He 
made    this  defense   that   he   was   obtaining  money   for   charitable 
purposes,    but   it   was  held  thit   the   false   pretenses  wer?   indict- 
able. 

6-^Vhere    both  parties   in  the   transaction  are   guilty 
of  false   pretenses   the    guilt    of   one   is   no   defense   to 
a  charge    against    the   other, 

8   flushing    571 

puffing  one's   wares   is  not    indictable.      A  man  when 
selling  has   a  right   to  puff  his  wares   and  if  he   does  make   false 
pretenses   it   does  not    render  him  indictable.      But    fraudulent 
devices  made    for    the  purpose   of  creating   false   impressions   as 
to    facts    are   indictable   as    false   pretenses. 

4  Denio  425 

January   8-1903 

--0--0--0--0--0--0--0-- 


C    R   I    :.!   I    ri   A   L        LAW 
XX  L  E   C    T    U   R   E  XX  66 

oOo 

As   you  will   remember   we   wer-    iiscussing   tho    shject 
of   offenses   against    the   property.      And  had   discussed  embezzle- 
ment.     We    will    now  t   ke   up    for/jery. 

PDRCtERY  is   the   fraudulent   makinn;  or   alterin.p;    (you 
understand    th^-t    the  popular  acceptation  of   for-jry  is'thfe  you 
must    sisn   somebody's   name    to   a  note   without    authority.)    or 
a  writinc   to   the   prejudice   of  anotl^r   inan's   ri/^ht.      If  nobody 
is   hurt    then   it    is   not    a    criminal    forgery.      You   see    the   word 
"Fraudulent"    is   there.      :Tow   I    h3ve   given   yoj    a  definition  of 
forgery,    but    the   only   authority  I    have    is   at: 

4    Black.    247 

1-The   instriment   must   have   pecuniary  importance.      It 
will   not    do    to    convict   a  man  of  fo  n^ery   because   he   falsely 
signs  his   name   or   the   name   of  another  pe^'son  to   an  ordinary 
letter  of  affection. 

7    Cox'    C.^''.    494 

That    was   a  case    in  w.-.ich  the    defendant   had  an  etch- 
ing  of   a  man  of  great    importance,    but    it    was   not    a   signed 
proof.      He    forged    the   signature   of    the    artist    and   sold  the 
picture    as   a    signed  proof,    but    the    court   held   thfe     it   was  not 
forgery.      If   the  man  had   bean   indicted  for  false    tokens   I 
doubt   whether  or   not   he   wovild   have   gotten   off   so    easily. 

The   forging  of   a  letter  ol  reiomi'-.-endat- 

ion  may   be    forgery  if  it    involves   financial   responsibility.      In 
other  words,    if  a  man   should  forge    a   letter   of  recommendation, 
which  places   the  party  to   whom  it    is   addressed  under   some    fin- 
ancial  responsibility   the    forfeiture   might   be    indicted. 

2  Greenleaf  365 

But  a  false  letter  introducing  one  to  the  hospital- 
ity of  another  is  not  a  forgery. 

67  111  91 

2-Where    the   forge'^y  consists   in  the   altering  of  a 
written   instrument    the    alteration  must    be   a  material   part. 

27  Iowa  420 

But  the  alteration  of  an  ir.str^jment  having  no  legal 
effect,  that  is,  the  instrument  itself  has  no  legal  effect  or 
or  any  pecuniary  value  is  not  forgery.  In  other  words,  the 
instrument  altered  must  represent  some  pec^oniary  value  and  it 
musthave  some  legal  effect,  and  tlie  alteration  must  change  it 
otherwise  it  is  not  i'fargery  to  alter  it. 


Xy  C   R   I    i:  I    N   A  L        L   A  W  67 

The   altering   of  a   void   bond  is   of  n")   importanc  j    -    it    is  not 
foi^ery. 

2  East    Pie.    C.    953 
I    have    s",id    that    the   alteration  must    be    of  a  mater- 
ial  part.      What    is   a  matiial   part    of   the   instrument?      If   it 
does   not    change    the    legal   effect    the    alteration  is  not   mate."- 
ial    and   therefor^;    it    is    n'"'t    forgery. 

6  Mass.     519 

7  Iredell    21.6 

Take    a  promissory  note   forasxarnple    and  you  raise    the 
rate   of  interest    from  G'o   to    3^  by  alteration.      If   that    is   done 
fraudulently   that    is    a  forgery.      It    changes   the    legal   effect 
of  the   instrum.ent. 

3-1 1    is   not   necessary  that    the  name    forged   should 
be    of   some   person  having   legal   capacity.      The   narr.e   of   a   fict- 
ious   person  or    of  one    deceased  may   be    forged.      The    idea   being 
that    there    shall   be    a  fraudulent    intent    to   impose   upon  the 
person  who   is   effected   by   the    forgery. 

13   Ohio   453 
21   Wendell   309 
One   may   forge   his   own  n  me   if  he   represents   it   to    be 
the   signature   of  another.      It    is   not   uncommon  to    find  two  men 
by   the  name    of   John   Smith,    and   supposing   one   John   <^mith   signs 
his   naire    to   a  promissory  note      and  represents    that    it    is   a 
John  Smith   of   someother  place.      The    banker    receives   it    as   such. 
The   man  who   presented    the  note   is   guilty  of    forgery   because   he 
represented   the  nan-e   as   the    signature    of  another. 

11   Gray   197 
4-The   writing  forged  must   purport    to   be    the    act    of 
another.      Fraudulently  inducing   another    to   sign  an  instrument 
other    than  he    intends   to    sign  is   sometimes  held  to    be    forgery 
but   I    think   the   wi eght    of   authority   is   against    it.      He  may 
be   guilty  of   almost     .nything   else    but   not    forgery. 

Foster   V  "cKinnon 
I    Bishop    584 
IT    Bishop    589 
There    are    othe.s    that    difi'er    with  me    and  you  may 
take    y^iJT  choice, 

5-It    is   not   necessary   that   the    forgery   should  be 
successful,    that    is,    it    is   net   necessary  that    the   crime    should 
accomplish  any   tbing   in  particular.      It    is    sufficient    if  there 
was   an  intent    to    defraud   some   person.  You  will   discover   at 

once    that    this    subject    is  closely  allied   to   the    subject   of 
uttering   false   paper,    which  I    shall    speak   of  presently. 

15  !;ass.    526 


XX  C   R   I    •■   I    ^T   A  L        L   A  \V  68 

Fraudulent   misreading  paper   is   not    forgery.  But    > 

that   will   depend   altogehter  upon  which  line   of  cases   y^u  foll- 
ow. 

22   Penn. St.    390 

UTTERING   FALSE  PAP.^R.      This   is   a   subst-intive   offen- 
se  and   independent    from  the    crime   of  forgery.      It    is   an  att- 
empt   to   cheat    by  a   false    document.      You  will   notice   that    I 
use   the   word   "false"    inStEad  of   "forged"      This   is   usually  reg- 
ulated by   statute   and   the    st?tut8s   of   thes  everal   states   are 
not    in  harmony,    but    the   general  principles  here    laid  down 
govern  all   of   them. 

1-The    offense   is  complete  when  the    false   instrxmient 
is   offered.      That    is    sufficient    uttering   to   offer   it.      It    ne id 
not    be   accepted  and  the    f^ct    that    it    is   not    accepted   is   no 
excuse, 

25  Mich.    388 

What  is  a  sufficient  uttering?   Of  course  the  offer- 
ing of  it  to  a  bank  etc,  would  raise  no  question,  but  there 
are  troublesome  cases  of  uttering  and  in  order  to  impress  upon 
yovir  minds  what  is  me  ^.nt  by  it  I  will  give  a  few  illustrat- 
ions.   The  putting  of  a  falsa  deed  on  record  is  a  sufficient 
uttering.   One  man  may  forge  a  deed  and  another  man  take  it 
after  it  has  been  forged  and  put  it  on  record.   The  bringing 
of  a  suit  upon  a  false  or  forged  note  is  a  sufficient  utter- 
ing.  In  other  words,  any  attempt  to  make  use  of  the  instrum- 
ent as  genuine  is  sufficient  and  whatever  form  or  attempt  it 
is  is  o f  no  importance. 

27  Mich.  356 

15  Upper  Can.  Q.  B.  118 

2-It  is  not  necessax'y  that  the  crime  of  forgery  be 
committed.   The  p?.per  may  be  false  without  being  forged. 

15  Upper  :an.  Q.  B.  48 

3-Having   possession  of  forged  paper  with   an  evil 
int  jnt    is  not    punishable.      But    it    is   said  that    the   procuring 
possession  of  forged  paper  with  the   intent   to  use   it    is   suff- 
icient. 

I    Bishop   204 

COUNTERFEITIITG  was   punishable    at    the   common   law   as 
a   cheat   and  was   a  mis-demeanor.      ilounl.®ilf£il.^I15_is   the  making 
of  false   coins   in  the    similitude   of   the   genuine    (that    is  the 
common   law  offense)    with  the    intent    to   defraud.      Of   course    it 
resembles   forgery   but    it    differs   from  it    in  the    fact    that    in 
forgery  there   need  be   no   resemblance    to    the   genuine,    but   in 
counterfeiting  there  must    be   o    likeness   of   the   genuine. 

9   Howard    560 


XX  C    R   I    V.   I    IT   A  L        L   A  W  69 

This   offense   may   be   one   against    the    state   ^.nd  also 
one    a,3   inst    the  U.S.    We   have    a   dual    sovei-ijinty    rind   so   a  main 
may   com::iitt    an  offense   and   it    b  ■   against    both   soveigntys. 
So   if   a  man   counterfeits   coin  or  paper  he   may  be   guilty  of   a 
crime    against    the    state    and   also   against    the   U.S.      He   may  be 
p^unished  in  the   stata    and   serve   his    sentence    thenbe   tried, 
convicted  and   sentenced  in  a  crarge    brought    by  the   U.S.      As 
a  matter   of    fact,    howevei',    a   man  is   seldom  punished   but   once. 

lAALICIOUS   I/.ISG-'^JP  is   t  lie   malicious   injury   to    the 
property  of   another. 

1-At    the   common   law   the   wrong    was   punished  as   a 
mis-demeanor   if   it    involved  cruelty  to    animals  or   w   s   done    in 
the    night    time.      It    was   n'"'t    punished  except    as   a  mis-demeanor 
and   then  it   was   not    punishable   unless   it    involved   the    cruelty 
to    animals   or    was   done   in   the   night    time. 

5  Denio   277 
8  Gr^t.       708 

The    statutes  of   the   s^^veral    states  make    the    offense 
a   felony,    I    think    in  every   state   in   the   union,    and  the    stat- 
utes  are    so    drawn  as   to  reach  almost   every  form  of  injury   to 
property   -   real   or  personal:    individual   or   corporate. 

2-The   crirrte    is   complete    whenever   there    is   h.  wanton 
or   rexkless   destruction  of  property.      It    is   not    necessary  th-t 
any  express  malice   against    the  owner   of    the  property    be    shown. 

72  ?Uch:    172 

Now  the  more   common  examples   of  malicious  mischief 
that    you  v;ill   find  in  your   statutes   are    against    the    disfigur- 
ing of   animals.      The   cutting  of   the    tail  or  mane   off   a  horse 
is  malicious  mischief.      Another   and  more   common   form  is   the 
injury  to  mill   dams.      If   you  pull   out    the    boards    so    as   to    let 
out    the    viQter   it    is  malicious  mischief  and   is   exrn-essly  pun- 
ished by  the    statutes   of  most    st-tes.      If   you  have    an  actual 
case   of   this  kind   study  yo'^r    statutes   carefully   and  if  you 
cannot    find   something   covering   it    your  s  tatutes  must    be   very 
far    behind  those   of  I-.'.ichigan. 

January   9-1903. 


G    R   I    M   I    •■^    A   L        LAW 

JQCI  LECTURE         XXI  70 

l"hen  v;e    closed   the    last    lecture    we   had   concluded 
whit   we   had   to    say  with  reference    to  malicious   mischief,    and 
also    concluded  th.i    s   bject    of   "Offenses    A^^aiust    Property." 
Y/e    come   nov   to   another   general   topic". - 
_OFFENRES_AG  AI_N_^T_PU  BLI  0    JU_^T;^C  E : 

PERJURY  is   the    lawful    fplse    swearing    (Every  word  of 
this   definition  is   important)    in  a   coiort    of   justice   on  a  mat- 
ter material   to   the    issue.      We    shall    see    that    the^^e   may   be 
false    swearing  punished  as  perjury  vihen  the    false    swe-ain."^ 
is  not    in  a   court    of  justice,    b'at    these   c^ses   are   rare    and  we 
will   point    them  out.      Mow   as    to   the    criminal   in^'redients : 

l-T--<er3   must    be    a   lawful   oath  or    affirmation.      And 
this   oath  or   affirmation  mu3t    be    before    a   competent   officer. 
It    is   not    every    student    of  the   U.of  M.    that    can  take    an  oath 
and  make    a  man  guilty  of  perjury  under   false    statem3nts.      'f'^-is 
oath  must    be    in  form  of   1    w. 

4   Parker's   C.C.    213 
An  OATM  is   a   declaration   of   fact    (".ot    a  promise   ^on- 
derstand)    on   appeal    to    some    supreme    being   for   its    truth  or 
the    truthfulness   of   the   man  who  makes   the    st-,tement.      An 
APPIRMATIOIT   simply  omits   the   appeal    to    some    supreme   being. 
You  are    aware    that    there    are   many  people   who    conscientiously 
believe   that*^no  man' sho    Id   take    an  oath  on  an   appeal    to    the 
supreme    being.      The    law  of  nearly  every    state   recognizes   this 
conscientious   scruple    and  parties    are    either  perirtted  to 
swear   or   affirm  that    they  will   tell   the    truth,    the   wViole   truth 
and  n-t:'in":   but    the    truth.      Now  form?.l    omissions   in   adinini  ster- 
ing   an  oath    a  e   not    important. 

17   M.  •',     373 
2-The   oath  must   have    been  givjn  in   some   judicial 
proceedings   or   in  a   cause    in  court. 

16   Iowa   36 
42   Vt.    446 
You   want   to  keep   in  mind   that    the   false    swearing 
must   have    be  Dn  in   some    court    where    there   was   a   judicial    in- 
quiry  involved  or   in   seme   proceeding   in   action  with  ti-e   case 
pending   in  court,    otheriwse    it    is   not   perjury,    except    for  the 
reasons   thn    I    shall    give. 

a- The    offense    also   includes   a   false   oath  to    an   aff- 
idavit  required  by    law.      You  will    notice   affidavits   in  news 
papers.      V/h3t    does    th-^t    -imoujit    to?      You  can't    found  perjury 
on  any   such  ground    as    that    because    it   was   not    in   a  judicial 
proceeding  and  are   not    required   by   law.      And   ynu   all   know 
that    every  man   installed   in   a  public   office   has    to    take   an 


XXI  C    R    I    M   I    N    A  L        LAW  71 

oath  or  office.      Than   it    turns   out    that    he    fails   in  his   per- 
formance  of   duty.      He    is  not   {^'oilty   of  perjury.      A  false   pro- 
mise  only  h?.s   a  moral   binding    ';nd  has   no    affect    in  the    law. 

3-The    oath  t  ..>sn  is   often   called   a   CORPORAL  OATH. 
It    is   called   a   corpo    .1   oath    because    the  oath  as   ori'-inaliy 
administ3.-ed  involves    sor.;e    3ct    as    the   kissing  or   the'layin^: 
of   the  hands   upon  the    bible.      come   physical   manifestation  in 
recognition  of   the    sole-mi  ty  of   tlie   oath.      In  most    of  the 
western   state-    it    is    by  the   upliftin--^   of   the   h-nd. 

9  N.  •'.    96 

^'Jhai-e    it    is    s^id  th^t    a-.y   bodily   assent    is    suffic- 
ient.      Some   outward  form  of  manifestation  is   necessary  in 
every   jurisdiction. 

86   N.  Y.     154 

The  exact  fonii  of  administering  sn  oath  is  said  to 
be    directo    y. 

11   Allen  243 
In   that    case    the    statute   had   been  modified   and   call- 
ed  for   the  uplifting  of   the   right  hand.      The    accused   follo-;ed 
the   old   style   of  kis;=;ing    the   bible    and  when  he   w-is   indicted 
for   perjury  he   made    the   pie:    thot   he   did  not    do    it    in   the 
proper  manner    esquired   by   law,    but    the   coui-t    decided    that    he 
had   filled    all    the    requirements. 

3  :,'.inn.    444 
It    was   her-j   held    th -^t    the   form   required   is  mandatory 
and  not    directory. 

4-The   oath  must    be    wilfully   false    'ns   to    some   past 
or  existing   f-:.ct. 

a-False  shearing  by  mistj:ke  is  not  perjury.  There 
is  some  doubt  about  that  but  I  think  it  arises  from  the  fact 
that    tlie    courts    are   a   little      suspiciOL>s   of  that    defense. 

36   ^T.  Y.     434 
II    Bishop    1047 
Here    the    two    views   are    expres"ed. 
b-Oaths   of  of. ice    although  false    in   the   end  do   not 
amount    to   perjury. 

1   Hawk.    Pleas   C.      c    69 
There    may  be   perjury   even   th^'ogh   the    facts    swore    to 
be    true    if    the    accused   believed  it    to    be    false.      Theoretically 
th-:;t    is   correct    because    the   offense    is   not    ag^-inst    the    indiv- 
idual,   but    it    is   against    justice      and  one   who   intends   to    swear 
falsely  has   commit    ed  as   great     :  crime    as    though  he   did   swear 
falsely. 

Harris   C. L.    73 
II    Bishop   C.    .     1043 


XXI  C    R   I    !.:   I    'T   A   L        L   A  W  72 

Vfhile    the    f?lse    swearing  mus      be    wiirulr-'&^U-.t-h^' 
vo]unt?.i'y   intoxic^tioa  oi'   th3    accused   is    sai'^    tn    b-3    ^   50   d   de- 
fense. 

2   Parker's   O.C.    19 
2   Bish.       104jtake=;    son.e    excepti-T.. 
The    St    te    courts   courts  have    no    jurisdiction   to   pun- 
ish perjury   ag^iinst    the   United   '=^tnes,    in  other  words,    supp    sd 
a  man  come   into    the    federal   court    nt    Detroit    and  he    swea-.s 
falsely.      He   perjured  himself    within   the    bdhdg   of   the    ^t-^te 
of  ?.;ichigan,    yet    he    did  n'^      offeiid    the   courtsof   the    state    of 
Mich,    or    the    sove^^i-nty   of   tds    stte. 

32   Ark.    117 
5-The    testimony  rr.-St   h~.ve    been  materi^.l    to    the    issue. 
It    need  not    be   the   ."iiain   issue,    but    it   must    be    matierial   either 
to   the   main   or   collateral   one. 

12  Jv'et.    225 
Suppo   e    th  ;t   one   should   swe-r   falsely  as   to    their 
age    -    th-?.t    is  not    perjury   because    it    is   not   material    to   the 
i  ssue. 

2    Bish.     1033 
a-Courts   are    divided  as   to   whether    the   materiality 
or   the    false    swear-in^   is    for   the   jury  or   the    court,    because 
in   the   prosecution   for  perjury  one   of   the    first    q.iestions   is 
to   ascertain  what    he    swore    to   material   to    the   issue.       Some 
courts  hold   th^t    it    is   for   the  jury   and  others    thte  it    is   for 
the    court. 

?.'ay's   G.L.    138 
On  principle   the    question  is   one    for   tne   court     ,nd 
not    for  the    jury. 

6-At    the    common   law   one    could   not    be     convicted   of 
perjury   except    on  the   oath  of  tw-'   witnesses.      If  he    swore    that 
a   certain  t^.ing   was   a    f  3ct    you  must   prove    by    two   witnesses 
that    it   WIS   not    a   fact.      The    reason  was   that    a  man   should  not 
be    convicted   simply   by  having   his   testimony  weighed  against 
that    of   another  man,    but    thet    is   not    true    at    the  present   ti-e. 
The   present   view  is    th'^t    the   jury   is   to   pass   upon   the    question 
as    to    vih-:t    was   testified   to   w'.s    t^-ue   or    f-'-lse,    and  the    testi- 
mony  of  one   witness    in  view  of   all    the   circumstances  may  be    of 
greater  wei'^ht    th  n  others,    and  he   may  be   c-mvicted  on   t  he 
testimony   oft  his   one    '^an. 

29    Ind.    442 
10    Ohio    S^:.    258 
SUBORNATIO"   OF   PEMUr^Y   is    the   procuring   of   another   to    t -ke    a 
false   oath  or   to   coirmitt    perjury.      It    is   punished  no'v   m  every 


X:'I  C    R    I    ?■    I    '^    A   L        LAW  73 

st-.te    in  the   union   as    a   subst>;ntive    crim^j. 

l-'^ha    raise   --^ath   t  ■    en  mu^t    of   itself  h?,ve    ^fmount  3d 
to   jie  'jury.       80    y.u  mu=;t   prove   that  per- jury  has   been   com  it  ted- 

2-Tbat    th5   definsa-it    t-rocured    the   perjury.      It    is 
a  very   common  crime    and  viry   seldom  punished. 

a-At   the    common   law   both  parties    wer:-    "guilty  of  per- 
jury,   but   now  th3    s   born^.tion  of  perjury  is  punished   as    ."n 
independent    crimi.      In  order    th  t    the    isfendant    shall    be   guil- 
ty of   suboirnation  of  perjury   both  parties  must    believe    th~-t 
the   matter    sworn   to    is    false.       Solicitation   for  one   to   committ 
perjury   is    a   criminal    a    tempt. 

BRIBERY  is   where    a   jud-e    or   other  officer   concerned 
in   the    administration  of   justice    receives  undue    rewvrd   to   in- 
fluence  his   actio  IS.      It    is    an  offense    againsi    public    justice. 
It    was    .-.  mis-demeanor    at    the    common   I'w   but   it    is  usually  plan- 
ished  by   the    stte=-    as    :    felony.      ^'ow   the    st-.tutes  usually 
provide    for   tl^e   punishment   of   bribery  of:- 

a-Judicial    Officers, 
b-Administ-   tive    Officers, 
c-'51ector3   at    :n  Election. 

Of  course    in  a   jiven   c?. 'e    you  must    consult    the    sta- 
tutes  of   the    state    where    the  offense   is    committed   before    y^u 
can    determine   whether    the    case   is   within  the    st'tut-j   or  not. 
He   who   f^ives   is   as   r^iailty  as   he   who    receives.      There    is    a  pop- 
ular  impressir.-i  th.it   a  man  who    receives   money   for  his   vote    at 
an   election  is    the   guilty  party  only.      Attempts    to   bribe   are 
frequently  punished   as    a  complete   offense    and  p"jjiished   some- 
what   severly.      One    who   votes    for  a  reward  or   one   w 'O   refrains 
from  voting   is   guilty   of   bribery. 

II    Bishop        s   86 

The    ,'jist    of    the   offense    is   the   perversion  of   justice. 
2  V':'.    Cases   460 
row  then  the.-;    are    some   manual   offenses   against    courts 
of  justice : 

1-EMBRACERY  -    involves   an   attempt    on  the  part    of  per- 
sons   to   influence    the    verdict    of   a    jury      by  reward,    entertain- 
ment,   etc.       It    is   a  very   common  offense    and  very    seldom  pun- 
ished. 


January   15-1903. 


J 


C    a   I    ^:   I    rl   A  L        LAW 
XXII  L    "'.    "•    V    U    ,^    ,T.        xyil  74 

oOo 

Now  when  W3    closed  the   l"st    lecture   we    wer-5   consid- 
ering  some   of   the   ndnor   offenses   against,   public    justice   and 
had   spoken  briefly  of   embracery. 

(-■ompoundin/?;    a  felony  is   failura    to   prosecute    a   fel- 
on-but    simple    failure    is   not    quite   enough.      There  must    be    an 
effort    to    avoid  prosecution   of  a   felony.      It    is  punis^-^ed   as    a 
substantive    crime.      The   cist   of  the   offense    is    the   intent    to 
stifle   prosecution   by   f^iving   a  reward  whereby  one    is   kept    from 
a   court    of   justice    to    testify.       Comp   unding    a  mis-demeanor    is 
sometimes    authorized  by   the    st    lutes   of   the    stste,    fnat   is, 
permitting   the  parties   to   get    together   and    set    le    the   matter 
on  a  pecuni3ry  consideration. 

■     '  .  PRISOr  ■^jPvEACH  is   the    breaking  and  goi.:g  out 
of  prison   by  one    lawfully  confinef^    therein. 

a-There  m'.ist    be    an  actual    breaking  out.       Pome    force 
must    be   used.       '"alking   out    of  an  open  do^r   is  not   prison 
breach. 

b-The   prisoner  musv    escape   or   the   offense    is   not 
complete,    m  other  words,    he   nust    get   out    from  under   the    cust- 
ody and   control    of   the    law. 

c-The   person  may   be    in   a  place   of    confinement    such 
as   stocks   or    yard's.      Many  prisoners   are   placed    to  work   in 
yards   cracking    stone,    and   if   they  escape    from  their  keeper 
they  are    guilty  of  prison  breach. 

d-The    imprisonment   must    be    lawful.      If   it   was   un- 
lawful  the   party  has   not    committed   the   offense.      The   only 
question  was  he    confined   by   .-   proper   v/ar-ant.       '.i'  hi   was   it    is 
his    duty   to   remain   there.      It    is   said  th?.t    the   breaking  from 
prison   by  nexiassity   is   not    a  prison   breach.      Of   course   if   a 
priaoru-shouj  d  take    fire    the   man  has   the  right    to   make    f-e 
pjcison   breach  without    being  guilty  of  the   offense. 

R.TSGUS  is   the    delivery  of  one    from   lawful   im.prison-. 
ment    by   a   stranger.      One   who   assists    another   by  passing  in  a 
saw,    hammer   or   someother   insti'unent   with  which  to    release   him- 
self.     It    is    a   s^Jbstantive    crime,    but   it    is    sometimes  punished 
as   an   accessarial   crime    to   prison  breach. 

ESCAPE  is   of   two   kinds: 

a-Prisoner    escaping   from  lewful   imprisonment. 
b-An  officer   voluntarily  or  negligently   suffer- 
ing  a  prisoner   to    escape   from   lawful    imprisonment.      It    is   the 
criminal   escape    that    I    am  talking    about    now.      It    is   an  offense 


X7TI  C.    R   1    ''   I    IT   A   L        LA  W  75 

against    th3   public   p^ace. 

AFFRAY  is    th3    fight inf;   by  traitual   consent   of   two   or 
more   persons   in   some   public   place    to   the   ter.-or   ^f   the   people. 
It    is   a   substantive   crime.      The    theory  of   the    1='*  is   th.r.t    it 
is   the   fri^'nt    and   annoyance   o_'   t  lia   public    th?t    is   the    ^ist 
of    the   offense.      A  worded   dispute    is   not    ^.n  afx'ray,    ot'-.erwise 
the    of   er~3"  would   be    too   common. 

15   aeo.    322 

One  who  fights  in  self -defease  is  not*  .guilty  of  an 
affray.   It  must  be  by  consent  of  both  parties.   If  one  pa  ty 
is  acquitted  the  other  must  be.  One   may  bi  guilty  of  assault 
and  battery  and  the  other  entirely  innocert,  but  not  so  with 
an  affray.   The  place  must  be  a  public  plsce  or  one  in  view 
of  the  pu'..lic.   A  secluded  spot  in  the  woods  is  not  such  a 
place. 

22  Ala.  15 

RIOT   is   such  disorderly   conduct    in   three    or  more 
persons    assembled   and   actually   accompli shiiig   a  pufp'ise   as   is 
calculated   to   terrify  others.      The    t'-eory  of   a  riot    is   the 
terror   of    the  people. 

2    Bish.    1143 

It    was    a  mi  s-demeanof    at    the   com.'non  la-;,    but   now 
it    is  punished   in  alm-^st    every    stgte    as    a  felony. 

1-The    concurrence   of   t'ni-ej   or  more   persons   is   re- 
quired. 

2   Alls ;    150 

This   number   is   soiv.etimes   changed  by    st-'tut3s.      'mder 
slavery   it    wa^   h.eld   that    two    iYe   men  and  one   negro  m.i~ht    m.ake 
a  riot.      It    is    thought    th'=t    two   persons   and   the   wife    of   one 
of   them  mi.^ht   make    a  riot,    but    tine   proposition   is    doubted  on 
the   theory  of    the    common   law  that    the  husb?;nd   and  wife    ire 
one.      If   two   other  persons   do    t  lie    active  mischief  and  a 
third  person  is  present    -betting,    then  t  lie    three    are    guilty 
of   riot. 

33  I'e.    554 

As   a  generl   r'ljile   riots    are    com-ltf-ed   every   day,    but 
no   one    is   punished.      Public    sentiment-  i?   alw-?ys    slow  to   con- 
vist    and  nothing   is   done   unles<3  personal   injury  is   done   or 
some   property   is   damaged. 

2-The    thing   contemplated  must    be    executed.      That    is 
to    say  what    is    attempted  must    be   executed   to    the   extent   of 
teri'ifying    the   people   or    I  here    is   no    riot. 

There    are    three   terms  used  in   the    law,    all    of   t  inem 
kindred   but    scientifically   distinct. 


Xyil  C    R   I    >'   I    '^   A   L        LA  W  76 

1-UnlRv/ful    ass3mbly      -      Th<t    is   whe^'re    they  asser.ible 
v/ith  an  i;it-3nt    to   coinrnitr.    an  offense    but    do  not   do   it.      They 
-re   guilty  of   an     n] awful    as   embly   but  not   of   a  riot. 

2- Route      -      If    they  assemble   and    -t tempt    to   execute 
the   unla^vful  purpose    and   fnil   it    is   then  called  a   route. 

3-Riot      -      If    the  purpose    for  which  thay  as^embDe    is 
executed   it    is   then  called   a  riot.      I    do   not   know   2s   there   is 
any  practical   value    of   these    ':^i  sti  net  ions,    but   I    .^ivs    them  to 
you   as   you  wil]    run   across    uheni  in  your    re    di---. 

45  N.M.  83 

4  Blackstone  146 

A   salvation   army  g-thei-'ing   in  the    street    is   r.ot    an 
unlawful    assembly. 

15   Cox'    C. C.     138 

It    is    some    times    said    that    in  ox-der    to    be   a   riot 
there   must    be    an  unla'.vful   assenibly  of  persons   for  an  unlawful 
purpose.      That    is  not    always    true.      A  lawful   assembly  rnay, 
under   certain  conditio-s,      be   conve  •.••i;ed  into   a   riot. 

CO'TSPIP.ACY  is   an  agre  ment    between   tvo     ;or  more   per- 
sons   to   do   an  unlawful    thing   ov   a:     •  -'lavvful    thing   b^'  linlawful 
means. 

1-The    gist    of    tha    crime    is   in  th.e    agreement.      The 
crime    is   completed   when   the    agrser.ent    is  made    because    it    is 
at    th  :t   point    that    the   public   peace    is   in  danger.      Of   course, 
if   two    or   more   parsons   conspire    to    committ    the   crime    of  murder 
it    is   clearly  a   case   of   conspiracy,    but  suppose    they  con- 

spire   to    secure    from  another   a  promissory  note.      This   i-   t  ha 
takin;-^   '^f   a   lawful    thing   by   ^onlawful  means. 

5  McLain  C.R.    213 
25  Vt.    415 

It    is  not    material   that    :.ny thing   should  have   been 
done   under    the   crime.      The    offense    is   completed   when  the   agree- 
ment   is  made.      As    to   what    is  a   sufficient   unlawful    act    the 
authorities   do   not    quite    agree.      A  conspiracy  to   d-^a   criminal 
act   or  a   lawful   act    by    criminal   means   is   equally  punishable 
as   a   conspiracy. 

2  Tenn.    P.ep.    734    • 

5   Alabama  765 

4    -lals^ead  "7293 
Generally   speaking,    by  weight   of:    authority,    conspir- 
acies   to    injure    or   disgrace   one    in  h.is    ch^aracter  or   business 
are    criminal   conspiracies. 


X>'II  0    i^   I         T    ■■    A   L         LA  ^V 

2   Lo.'d    .'=1   ymoncl    1157 
12    East       3G2 
An  agreement    wrongfully   to   t  h5   injury  or  pr  vjudice 
of   another   in  his  ri^ht    is   indictable,    in  ray  judfrment,    by 
wei."'ht   of   authority. 

3-A  conspiracy    to   comrr.itt    a   felony   is  mer'^ac'.   in  the 
felony  actually   carried  out.      That    is    so    in   t'  eory,    but    you 
must    not    take    that    as   being    safe    law  in  all   circumstances   for 
it   is   depending  upon    the   wording   of    the    statute,    and  if  he   is 
convicted  of   a   felony,    they   say   that   he    cannot    be    convicted 
of   a   conspiracy.      "ut    it    is    sai :"!   that    a   cnspiracy  to    comraitt 
a  mi  s-deme-:nor   is   not   merged   in  the    c  omrnittin-"   of    the  mis- 
deme'^nor   because    the    conspiracy,    as    a  rule,    is   a  higher   crime 
than  the   mis-demeanor. 

15   :'e.    100 
FORCEA^LE   E:"TRY   A'-D   DETAIITE^::      Tbis    applies   i:-    an 
crimes   against    the  real   estate,    and  not    against    the  pe  .^son. 
It   was   not    an  offense   at    the    early    common   law  but   was  made    so 
by    early   English   statutes.      It    is   commonly  punished  at    the 
present    time    before    a   justice   nf    the  peace.      Tbere    is    3   civil 
action  for   the   recovery  of   lands   and  then   there    is   a  criminal 
one    and  this   consists   in   "Violently  takin-^   or   keeping  possess- 
ion  of   lands   with  menace   or   force,    and  of   course,    without    the 
authority  of   law. 

4    "lackstone  148 
1-The    gist   of    the  offense   is    the    actual   or   threaten- 
ed personal   violence   to   the    terror   of   the  people. 

4    -«ushing    141 
43   r.Y.     152 
a-Threatened  injury  to  property   is   not    sufficient. 
The    threats  must    be    ^.g'inst    the  person. 

I.'ay's   C.L.    16S 
b-Such  force    as    -\mcimts   to    a   gentle    layin"!  on  of 


hands. 


force. 


5   Cush.    214 
Of   course,    one   may   recover  his  own  by  use   of   lawful 


c-The   offense   may   be    commit    ed   by  one  or  many.         A 
forceable   entry  and    detain)r  may  be   indictable   even  tlTDugh  no 
one    be   present    or   in   actual   possession  of   the   propet'ty.         It 
is    the   intention   that    is   punished. 

52   Barker   ".Y.    198     It    is   not    necessary 
that    the  one    in  possession  have   the    title.      A  co-tenant    -lay 
also    be   guilty   if  he    forceable    ejects   his    co-tenant. 

•January   1-3-1903 

--O--0--0--0--0--O--0-- 


C    R    I    '.:   I    -T    A   L        LA  v/ 
Xyill  L  E   C    T    U   R   E        XXIII  78 

MORALS    Ai'^D    R.3LI 2-'50Nj_ 

ADULT "IRY  involves   the    volunt-^ry    sexual   intercourse 
between  persons,    one   or'   whom  is  married.       Adultery  wes   n^'t    =in 
offense   r-^t    the    common   Iw.      It    is   a   serious   crime    in   the    stat- 
es   and   it    is      n   offense   to   day   in  Enf^I'nd,    by   statute.      Adult- 
ery  w.s   taken   cognizance    of   by  the    Ecclesiastical   courts    but 
was   not   known   in   the    common   law    courts.      The   of'ense   is  made 
a   felony   by   the    statutes   of  nearly  every   st-te    in   the   union. 
But,    the    off   nse   is   O's   t-in-";   in  one    st    te    '-nd   another   in   an- 
other.     There   a-^e,    I    think,    three    :lifferent    forms   of   the   off- 
ense : 

1-In   some    states   one    of  the    parties   must    be    a  marr- 
ied wom.an.       In   other  words,    a  married  man  cannot    committ    the 
crime   of  adultery   by   illicit    relations   with  an  ■'unmarried  woman. 
That    distinction  is   fade    because   it    is   regarded  as   an  offense 
agi.inst    the   h^^usehold  regarding   the    legitimacy  of  children. 

4   ivann.    335 
11    -e--.    53 

a-Th«s    rule    does   not    pr^v^il    in   divorce   proceedings. 
?ur"  osin-'   the    woman  sho  ild  file   a   bill   for   '•■ivorce    against 
her  husband,    the    fact    th   t   he   had  illicit    relations  with   an 
unmarried  v/oman   would   justify   the    charge   in   divorce   proceed- 
ings,   but    in   the    crime   the   woman  must    have    been   a  mar   ied  wo- 
man.      In   some    states   sn  unmarried  man   can'^ot    comrt-itt    adultery. 

2   Dallas    (Pa)    124 

The   wording    of   t  he  s  tatu'Le    is   what   must    be    observed. 
For    -as   I    said,    it    was   not    an   of  ense    at    the   common   law  aid   you 
must    in  a  pa^-ticular   case   observe   the  wording  under  which  the 
conviction      is   to    be    asked. 

2-In  many   states   it    is   adultery  where    either  party 
to    the    il^'icit    relation   is   miarried.       Th?t    is    true    in   M^ch. 

3-The  offense  of  Living  in  Adult  ry  (you  vill  find 
there  is  adultery;  living  in  adulte  -y  and  lewd  ^c  licentious 
co-habit .tion)  involves  something  mor 5  than  a  single  act  of 
illicit  intercourse.  It  means  living  in  adultery  unde."  such 
circumstances  as  becomes  offensive  to  the  community  in  w"ich 
they   live. 

39    Ala.    554 
116    Ind.    464 

4 -Both  p-.rties  may   be    charged    'jvith  the   crime    md 
tried  together.      One   may   be    convicted   and  the 

other   acquitted.      That    seem.s   ilJogical,    but   where    one   of   the 
parties    to   the    illicit    relation  was    so    far   intoxicated  as   tobe 


X:'TII  0    R   I    •'   I    -^    A  T.        LAY/  79 

iric?,Tabla    of  givi'-.'3  c    nsrjr;":.      I:i  that    cas"?    she   might   bi   h'5]>-i 
innocent     ;nd   still-v    the   vrcon^^   doer  would  b2  hel-^   r:uilty. 

133   •  3SS.     577 
5- In  i.lic'^.     (and   of  most    state?.)    compl3iint   must    be 
made    by  a  par-ty  to    the   raar'-iage    conti'2ct    viol^-ted.      In  esse   of 
most   c'rimss    anybody   th-t   hap'^ens  to   knov;  the    fact   ray  make    -?  err - 
plaint    &t3    secure    th-j   r;r-'est    of   the  wrong   doer,    but    th^  is   n'^t 
t:Ui    in   the   crime   of  adultery.      You   say   "Why  is   thta   so?"      This 
st-.te    sys,    "'>.Ve    are   more    interested  in   the   maintenance   of  the 
marriage    relation   than  we    ?.■  e   in   the   prevention  of   crime   and 
if   the  parties   to   the   marriage    relation  violate    it    and   they 
are    willing    lo   condone    the   offense    the  people   are  more   prot- 
3ct;d   than   they    should  be    by  its  punishment,      T''ie   har^'-iness   of 
the    ho.'r.e    is    the    first    t;ii-:g  that    the    st?.t3    interests   itself   in. 

6-A  ma  n  rnay   be    convicted   although   :^e    believed   the 
wom:-.n  to    be   unrnar    ied  and  marry  her    before   co-h^bit?tion.      I 
think    th;t    this   is   the   most    outr-^.geous   doctrine    of   lav    that    I 
ever   had  occasion  to   give    stude-'ts   on   t'^e    subject    of   "vrirrdnal 
Law.  " 

11    Al]en   23 
Bishop   "^t.    Crimes    357 
7-\7her?    in   a   str.tute    the    term   "Adultery"    is   used   but 
not    defined   t  iie   \inl'wful   act    would   bj    "dultery   in   the   pa    ty 
married   but    not    in   the   p    rty   unrnirried  unless    the    crime    i  s    so 
defined.      It   might    be    fornication   in  a  party  unm^rcied,    but 
th-3t    is   an  offense    th.-t    is  not   punished  in    'very    stats    a'nd 
not    in  ''ich. 

Bish,     ct.C.    656 
3-Th3re   must    be    a   sub  isting   marriage.      '"lien  you 
com.e    into    the    field  of  criminal    law  you  m-;3t   prove    -.  valid 
marriage   and  you  can't   prove   it    by    reputation   and   co-habitat- 
ion. 43   Me,    258 

9-- If  the  husband  find  his  wife   in  the    act   of  adult- 
ery  and  kill   her      or   her  paramour  he   is   guilty  of  manslaughter 
th-it    is,    legally  guilty*  fV/hether  or   not    -a   jury  woul-3   convict 
him  I    ^an't    say.)      If  he    should  have    sufficient    "Cooling  Time" 
th)n  the   killing  would   be   murder. 

8  Ca:-.    'c  P.    182 
35  Ind.    80 
62   -T.  Y.    229 
10-On    the    indictment    of  ad\ilt:^ry  one   may  be   convicted 
of    fomicat    on,    providing   ic    is    a   crime    ir.   the    st-te   v;her.-    the 
indictment    is    complemed. 

FORNICATIO!;-   is    the   illicit    reinions   between  x^ersons 
who    do    not    bear    legal    relations    to    anybody  else,    which  would 
m.aka    f..5   offense   adultery. 


T'lll  C   «   I   ^:  I    '^   A  L       I   A  V'  80 

l-VHiare    th3  husband  or    tha  wii'e    is   defe:idant,    neith- 
er  can   testify  as    at^si -ist    t\v   other   withoMt    iheir   consent. 

^.-3ut    aither  m:'- y  testify   against    the   adult  i  t'9  r,    'vh^ 
is   not    a  party   to   the   mar  •  iage    rjlatiou. 

b-In   ^-ome    states   neither   can  make    complaint    against 
the    other. 

42  Mo.    572 

1   Tyratton  Pa.    213 
22    Inwa    564 
2-The    fact    of  maxTia-^e  must    be   proved  -    simple    evid- 
ence   of    'To-habit:- 1  ion   is   not    sufficient. 

1  Bishop   ?.:ar.&  Div.       s   442 

It    is    said,    however,    in  ''ich.    that   marriage   in  this 
class    of   cas<:!S   may   be   proved   by    -".onfession  of  the   accused. 

39   Mich.    208 

^-It    is   not    necessary  to  prove   the  particular   tire 
and  place    of   the  particular    act   of    adu]  ^  3    y,    but   of   course, 
the    jury  must    find  in  their  verUct    some    time    and  place. 

4-Act3  of  f ?.niliari ty  prior  to  the  time  charged  may 
be  shown,  also  subseque  t  rricto  of  familiarity  to  the  parties 
of  the  illicit  relations.  Of  c^'Urse,  you  ^^nderstand  the  rules 
of  evidence  thi-it  pa  ties  can't  be  convicted  of  one  offense  by 
pr?vin~  another.  vHiile  that  is  true,  yet  if  the  flefendant  is 
charpied  va  th  the  crime  of  ad^Jltsry  with  a  cert=?in  person  acts 
of  familiarity  with  that  person  and  the  defendant,  both  prior 
and  subseq-.ient  to  the  time  charged  may  be  shown  as  cohabitat- 
ion evidence. 

2  ("-ray   354 

a-These    acts  must    not    be    too    remote   in  point    of   time. 
unless    these    acts   form  a  connected   series   of  improprieties. 

53   Mich.     525 
52   Wich.    569 

Prosecution   for  adultery  must   be   comirenced  within 
one    year,    therefore    acts   of  impropriety   datinft   back   two   years 
was  held  to    be   too    remote.      The   complaint    against    the    crime   of 
seduction  must    be    commenced   witMng   two    years.      The    theory  of 
the    law   is    that    these    offense?   be    dealt    -«!  th  promptly  or   else 
let    sleep    forever.      One   of    tYe   most    important    things   in   the 
adinini  strati  on  of   justice   is  that   the    stench  in   a   social   comm- 
unity  should   not    be    allowed   to    re;:iain   for    any   great    leng,  th 
of   time, 

5-The    defendant    may  be    convicted    (thfe  is,    charged 
m.ih  the    crime    of    adultery)    on  his   own  confession   but    in  div- 
erge  proceedings   he   cannot    be    convicted  on  his   own  confession. 


yyiii  T  R  I  :'  I  "■  a  l      ^.  ^  ^"  8i 

'^his   is   the   offer.se   of  havin--^   =■•  plur'olity   of  vvlfes 
or   i-iiisb.::nds.      The    common   la-     did  not    take    cogni23nce   of  this 

offense    it    was   controjled  almost   entirely   by   the   Ecclesiast- 
ical  courts   in   SnTland.      In   this   country   it    is  ^ade    a   st'stut-- 
Oi'y  offense    and  is   a!!so   a   statutory  offense    at    the  present 
time    in  En.^lana. 

1-Th.e    first   mar   iage  must    be   legal   and  must    be    cle- 
arly proved.      The   offense    of   bi.-jamy   is   vsi-y    frequently   a  very 
difficult   offense   to  establish,    for  the  reason  that   if  a  per- 
son  is   p;oinrr   to   cornrrltt    th't   cririe    they  desert    their    lawful 
wife    or   husband   and  go   into    so'.ieother    st-te    .nd  there   msrry 
•end    there    they   stay.      If   you   ar  -est    them  you  have   '--ot    to   go 
to    the   other    state    for   the   le^^al   pro^.f  of  the   first   mar.-iage 
and  prove    it    securely. 

Bishop    <^t.    C.     593 
2-The   offense   is   punishable  w!-jjn  in  I'm    jurisdict- 
ion w?iere   the    second  marria.^e  is   solemnized.       It    is    the    sol- 
emnization of   th;^  marriage    that    is   punisred. 

3   Pick.    483 
3-It    is  not   necessary   that    the    second  mari'iage   shou- 
ld  be    valid  or   in   true    form.       A  C'-^mmon   la'.v  marriage   is   suffic- 
ient. 

Bish.     -t,    Gr.     590 
The   gist    of   the    ofi'ense    is   the    solemnization  of  the 
mar   iage-. 

4- A  party  may  be    guilty  of   bigamy   if  he    marriy  in 
violation  of  a  decree    of   •-"i-yorce.      Now  y-u  are   awere    that    in 
many   states   it   p-rovides   that   neither  party    shall  mar.  y  within 
a   ce.^tain  number   of   years.      Wei]    suppose   he   does  he   may  be 
guilty   of  conten-;j:t    of   court   or   bi^-;am,y. 

•  3-It    is   not    so    if  he   marries   in  another    state   con- 
tainin^T  no   statutory  prohibition. 

113  Mass.    4  58 
Unless    the  marri-jge  in  t  h3    foreigh   state    was   a 
fraudulent    evasion  of   the    la'-v. 

5-A  divorce   obtained  in  a   foreign   state    court,    hav- 
in-^   no    jurisriicti'^n,    is   no   ans-zer   to   the    charge   of  bi-amy. 
,'   '  28  Ala   12 

25  Mich.    247 
In  that    connection   see   recent   U.  ^.    Supreme    :t.Case. 
(Perjury  is   the   wilful   false    swearing  in' a  court   of  justice 
on  a  matter  material   to    the   issue.    -   Corrected  from  pare    70.) 

January   22-1903. 

--0--O--0--O--0--0--O-- 


C    R   I    !.!   I    "    A   L        LA  W 

XXIV  L  E   C   T   U'  R   E  XXIV  82 

SEDUCTION  arises  wherj   c.    wrmn   is   led   frotn   the  path 
of  virtue    by   an  adequate    inducer;-,  ?nt.      That   must   be    disti".--;- 
uished,    of    course,    from  every   improper  illicit    relation.      It 
is  generally  understood  that   a  promise   of  marriage    is    an  ade- 
quate  inducement.      It    is    sometimes   thought    that   that   is   the 
only   inducement    that    the  l?.w  recognizes   -    that    is  not    true.    A 
money   compensation  or  any  pecuniary    rs^'ar:''    is  n  t    an  adequate 
inducement.      Whatever   the   offense   may   be,    n-ocured  und-^r   such 
conditions,    it    is   not    seduction.      In  Ivlich.    A  man  of   strong 
will    led  a  yung  girl  of  weak  mind   astray  by  presents.      The 
court   held   that    in  view  of  the   relative   position  between  the 
parties   'ne   mi'-tht    be    held  guilty  of   seduction.      I    have   nov/   fin- 
ished what    I   have    to    say  upon   the    substantive    InW  of  crimes. 
I    will   c^ll    yotir   attention   to    some    of  the    substantial   ri.~hts 

of  the    accused  in  CRIMINAL  EVITOE^'CE: 

1-RICtHT   TO    A  TRIAL   BY  JURY   -    This    right   is   preserv- 
ed  by  the    constitution  of   the  U.S.    and  also   by   the   constitut- 
ion of  most   of    tlie    states.         It   was   a   common    law  right    and 
the    const 'n      f  the   U.S.    and  of   the    several   states   are    declar- 
atory of   the    common   law    •■.nd  must    be    interpretated  in  accord- 
ance   with  the   c  armon  lav/.      This   right   can't    be   modified  or 
abridged   by   the    3t'.;te    legislature  where  it    is  preserved  in 
the   const  'n.    Iv!ich   says    "In   all   criminal    trials    the    right    to   a 
trial   by  jury  is  hereby  preserved."      T.us   trial    is   as   it    was 
at    the   common   law  and  not    such  a    ri/^^ht   as    the   legislature   may 
think   is   wise. 

58  Mich.    742 
43   Mich.    443 
This   right   can't    be    waived   by  the   accused. 
The   jm-y  must    consist    of  TWELVE    (12)    men  qualified 
to    sit    and  a  unamimous   verdict    is   required   for  conviction. 

15   Mich.    351 
The    legislature    cannot    require    the  jury   to   give    a 
special  verdict.      The    defendant    in  a   criminal   case    is    entitled 
to   a  general    vsrdict    "Ouilty  or  Not    Guilty." 

32   Mich.    1 
2-Right    to   defend  in  person. 

1-The  accused  is  entitled  to  be  personally  pre- 
sent at  every  step  of  the  proceedings.  That  is  true  from  arr- 
est to  sentence.  This  right  he  cannot  waive.  The  doctrine  of 
waiver    loes  not    apply  in  criminal   cases. 

110   U. S.     574 
This   rule   is   applied   to    all    trials   for   felonies,    and 
some   co^JLTts  hold   that    it   may   be    applied  to  mis-demeanors. 

67   111.    278 
16   R.I.    401 


XXIV  C    fl   I    M   I    !T   A   L        LA  W  83 

This   rip;lit  may  be    fori'eited   by   tha    ^.ceased   escaping 
from  the   court   during   the  tiial. 

5G   Ark.    4 
2   Oa.'.    6:   p.    413 
2-Any   st -5p    taken   in   the   absence   of    the   accused   vio- 
lates this   right.      The    jury  cannot    be    called  in  his   absence. 
Arguments   of   the    counsel,    taking  of    testimony  and   the   cliarging 
of    the   jui'y  must    all    be    in  his  presence    and   so   the  receiving 
of   the  verdict. 

13   Pa.    '-t.    103 
110   U.  S.     574 
Motions   for   the    continuance   or   for  a  new   trial,    or 
for    amdndmants   of  pleadin'TS  may  be   ma-^e    in  his   absence. 

45   Kan.    492 
S3   Mo.     159 
121   Mass.    371 
3-The    record  mxist    snow  on  its   face    that    the  accused 
was  present.      It    cannot    be    sh-M^n  by  verbal   testimony. 

6   Pemi.    St.    34  5 
II I -Represent at ion  by  counsel: 

1-Thi  s   rifght   did  not   exist    at    the    common   la'v. 
The    court    was    supposed  to    be   the   accused'    counsel.      2-This 
right    to    be    defended  by   co'onsel    is  nov;  observer^    by  every   state 
in  the   union.      3-The   court   may   assign  counsel    to   the   defend- 
ant   in  case   he    is  un'^.ble   to   employ   ther^i.      If    the   court    calls 
upon  an  attorney  to   defend  the   accused,    who   is  unable   to   em- 
ploy one    for  himself,    the    attorney  must    sit    down  and  defend 
him  and   do    it    for  nothing  unless    the   stste    provides   a  compen- 
sation,   but    I    think   that    every    state    in   the   •'onion  has  made 
such  a  provision. 

130   Ind.    2r35 
3G    "'is.    474 
IV-To    be    confronted  by  witnesses: 

In  other   words,    this   is   a   constitutional    right 
that    is   preserved  against    the    disgraceful   conduct    as   what   was 
known  in  England   as   the   Star-Ghamber.      This    right    'was  not    rec- 
ognized by  the   common  law   at    all   times. 

3   Greenleaf        s   2 
This   right   is  now  guaranteed   by   the   const 'n  of  U.S. 
This   guar-inte-   effects    trials   only   in  the   federal    courts,    but 
nearly  every   state    has   followed  the    const 'n  of   the   U. ^. 

T4.     .  3Ui=ence    oi    the    ',ccus-='d. 

^^  IS  only  wpen  he  is  on  trial  by  a  jury  of  his  peers  upon  the 
merits  of  the  case  th=5t  he  is  entitled  to  be  confronted  by  th- 
witnesses.      But    the    authorities   upon   this    subject    differ. 

3   Greenleaf      s    11 


XXIV  C    R    I    M   I    N   A   :.        LAW  84 

3-The    accused  vay  ■waive   this   ri'^ht.      ^e   may  consent 
to    secondary  evidence. 

29    Iowa    133 

1  Bish.     117 

The    testimony  of   a  deceased  witness  ,i,iven  upon  a 
former   trial  may   be   read  in  evidence   upon   the   theory   that    the 
accused  has   once   met   his   accuser   face    to    fsice. 

73   Pa.    ?t.    325 

Depositions   of  witnesses    -sannot    be    t^ken  v/ithout 
the    consent   of  the    accused.      They  must    come    before   the    jury 
or    before   him.      In   civil   cases   v/e    send  depositions   over  and 
out    of   the    state. 

48  Mich.     54 

It    is   said   that    this  rule    does  not    apply   to   testi- 
mony that   is   purely  documentary.  ,    that   is   evidence   outside   of 
the    jurisdiction  of   the    court   may  bs    taken  by   deposition,    such 
as  public   records. 

24   Mich.    225 

4-Many   st-^tes   require   that    the  names  of   the   witness- 
es  for  the  people    be   indorsed  upon  the  indictment.      The  piur- 
pose   of    this   is   that    the   accused  may   investigate   the    charact- 
er  of    the    witnesses   that   may   be    ac^inst   him.      This  rule   gives 
more    trouble    than  most   rules   in  criminal   trials.       Some   courts 
have   held  that    this   provision  requiring   the   indorsing  of  the 
names   of  the   witnesses   on   the    indictment    as  purely  directory, 

darks   Crim.    Proceedure    116 

5-The  people  must   call  all  witnesses    to  the    crim.- 
inal   act   even  though  they   be    favorable   to   the    accused.      All 
witnespes    should  be   put    on  the    stand  who   were   present    and 
knei^    anything   c  once  riling   the    facts   of   the    case. 

37   Mich.    4 

The    accused   can  ot    be    compelled   to   testify   against 
himself. 

1-A  witness    cannot    be    compelled    to   criminate   himself 
in  any   civil  or  criminal   proceedure.      T-te   court    determines 
whether   the    testimony  might    tend  to    criminate.      Of  course    this 
privelage  may   be   waived.      One's   declining    to    testify   against 
himself   cannot    be    commented  on   by  the   prosecitor. 

2  Mich.    340 

One    turning    pta<"e's    evidence   has   waived  this    right 
and  must    testify   fully, 

10  Foster  ]I. 'I.  540 

11  Gushing  4  37 

2-At  the  common  law  a  defendant  in  criminal  cases 


XXIV  •  C    R    I    M  I    t:   A  L        L   A  W  85 

can   t°Qtif"   in  his   ov/n   t9h?l-f.      that   wa^'.   a   fun 'lament -5 1  princi- 
ple   at    the   common   law.      In  most    states  at    the   present    time   he 
may  make    a   statement   unsworn  or  may  of-^'er   himself  as   a  regul- 
ar witness. 

50   N.  Y.    240 
55   Me.       200 

V/here   he   of.'ers   himself   as    a  witness  he    is    subject 
to    the    ordinary  rules   of    cross    erami    ation.      The    jury  cannot 
draw  unfavorable   inferences   from  his    failure   to    testify. 
By   express    statutory  provisions   it    is   a  prejudicial   error   for 
the    public   prosecutor    to  make   any  comment    whatsoever  upon  the 
fact    that    the    accused  does   not    take    the   witness    stand  upon  his 
own   benalf. 

The   accused   is   entitled  to   a   fair    trial.      This   is 
a  constitutional   provision.      I    shall   point   out    an  unfair   trial. 

1-The    trial   judr^e   should   not   give    an  opinion  in   the 
presence   of   the  jury  on  the   evidence   in  the    case   or   in  any  way 
prejudice    the   jury   for  or   against    a  particular  witness. 

2-The   prosecuting  attorney  must   not    at   his   opening 
state    facts   of  which  he   hp.s  no   proof  or   which  is   not    competent 
for  proof. 

59   Mich.     576 
64      "  706 

The  prosecutor  has  no  right  to  take  advant =36  of  his 
position  and  urge  the  conviction  of  the  accused  in  his  person- 
al  belief  except   upon  the    evidence   of  the   accused. 

58  Mien.    324 

As    to   when  remarks   of    counsel   ar3   prejudicial   and 
when  not    there    is   no    fixed  rule. 

3-The   court    should   exclude    witnesses   from  the    court 
room  while    they   are   not    testifying,    if   asked    to   do    so   by  the 
counsel  of      the    accused.      That    is   a   very   common  practice   altho- 
ugh I  do   not    tluhk   that    it    is   of   any  practical    value,      A  wit- 
ness  may   be    allowed   to   remain  who   is   of   special   assistance 
to   the   prosecutor. 

67   Mich.     537 

V-MUST    BE  ESTABLISHED    BEYOND   REASONABLE   DOUBT 
I   would   liked  to  have    talked   to   you  on  this    subject,    but    I    can 
only   say  that    reasonable   doubt      is  not    a   captious   doubt.      It 
is   such   an  one   as   a  prudent   man  might   have   in  view  of   the    cir- 
cumstances  of   the   accused.      The    authorities   are   at    a  variance 
as   to  whether  or  not    the    question  of   insanity  is   a   burden  upon 
the    accused  or  upon  the   people.      I    think   the   v/eight   of  author- 
ity is   that    the   public   prosecutor   is   to    satisfy  the   jpury  of 
the   entire   case   including   insanity   beyond  a  reasonable    doubt. 

January   23-1905. 

__o__      FINIS      --0-- 


C    R   I    f'   I    V   A   L        LAW 

INDEX  86 

oOo 

Abduction,  42 

Accessaries,  21 

Before   tha   fact,  22 

After   the    fact,  22-3 

A^conplice,  23 

Adultery,  78 

Living  In,  78 

Rules   of  evidence,  80 

Prosecution  for,  80 

Affray,  75 

Aggravated  assaults,  44 

Arson,  46 

Assault,  42 

With  deadly  weapons,  45 

Attempt  to  committ  crime,  5 

to  do  an  impossible  thing,  6 

Authorities  on  crime,  1 


Battery, 

43 

Bigamy  &  Polygamy, 

81 

Bribery, 

73 

Burglary, 

48 

Voluntary  drunkenness  - 

-  defense, 

50 

The  breaking, 

49 

The  entry, 

50 

Carelessness  of  physician,  29 

Coercion  by  husband,  8 

compounding  a  felony,  74 

mis- demeanor,  74 

Compulsion  to  committ  a  crime,  8 

gonditions  of  criminality,  7 


C    R   I    M   I    N   A   L        L   A  W 

INDEX  87 

Cooling   time,  33 

Conclusions,    ip;norance   of  fact,  ]7 

Conspiracy,  76 

merger,  77 

Corporeal  oath,  71 

Corpus  delecti,  28 

(-^overture,  9 

Counterfeiting,  63 

Crime, defined,  4 

subdivided,  4 

distinguished  from  a  tort,  4 

solicitation,  7 

classified,  24 

Criminal  intent,  5-15 

mistake,  ignorance  of  la^  and  fact,  16 

libel,  45 

evidence , rights  of  accused,  82 

Ctirtilage,  46 


Defend  in  person,  •        82 

Drunkenness,  14 

Duel,  31 

Dwelling  house,  46 


Embezzlement,  59 

distinguished  from  larceny,  60 

Embracery,  73 

Emotional  insanity,  13 

Entry,  in  burglary,  50 

Epochs  in  Criminal  Jurisprudence,  2 

Period  before  Norman  r;0"iq^est,  2 

trial  by  ordeal,  2 

trial  by  jury,  3 

Escape,  74 


CRIMINAL        LAW 

INDEX  88 

Pair   trial,  85 

False   pretenses,  62 

distinguished,  62 

ingredients,  63-4 

Felony,  24 

Force,  kinds,  39 

Forceable  entry  and  detainer,  77 

Forgery,  66 

essentials,  67 

Fornication,-  79 


"Guilty  or  not  guilty,"  82 

Guiteau  case,  13 


Homicide,  28 

felonious,  ■                                     28 

excusable,  35-6 

justifiable,  38 

Habitation,    defense,  37 

Hadfield  case,  11 


Idiot,  10 

Insanity,    classes,  10 

as   a   defense,  12-14 

Insane   delusions,  11 

Intents,    two   or  more,  13 

Irresistible    impulse,  12 


Jury,    twelve   men,  82 


CRIMINAL    LAW 

I  IT  D  S  X  89 

Kidnapping,  42 

Kleptomania,  11 


Larceny,  51 

simple,  52 

property  subject  to,               54 

specific  intent,                  57 

Levying  war,  25 

Liinatic,  10 


Madman,  10 

Malicious  mischief,  69 

Manual  seizure,  52 

Man's  house  his  castle,  36 

Mayhem,  45 

Ma  1  i  c  e  ,  20 

Malice  aforethought,  30 

McNaughton  case,  11 

Manslaughter,  32 

involuntary,  34-5 

voluntary,  32 

Mi  s - deme  ano  r ,  24 

Misprision  of  treason,  27 

Moral  insanity,  13 

Motive,  11 

Murder,  defined,  30 

degrees,  31 


Oath,  70 


C   R   T    ^"  T    ^T   A   L        LAW 

INDEX  90 

Offense   against    the    Soverignty ,  25 

Person,  28 

Property,  46 

Public   Justice,  70 

Public    Peace,  75 
Morals   &  Religeon,      78 

Overmatched,    one   who    is,  37 

Overt   act,  5 


Paramour,    killing  of,  79 

Parties   to   crime,  20 

Perjury,  70 

requirements,  71 

Police   regulations,  17 

Preparation  for   crime,  5-6 

"             assault  42 

Pressing  necessity,  8 

Principal,    first    degree,  20 

second  degree,  21 

Prison  breach,  74 

Provocation,  32 

Puffing  one's  wares,  65 

Putting  in  fear,  39 


Rape ,  40 

Realty  in   larceny,  56 

Receiving    stolen  goods,  57 

recent   possession  of,  58 

Represent '^'.tion  by  counsel,  83 

Right    from  wrong   test,  12 

Robbery,  38 

Rescue,  74 

Retreat    to   the  wall,  36 

Riot,  75-6 


CRIMINAL        LAW 

INDEX  91 

Rout 3,  76 


Sedition,  27 

Seduction,  82 

Solicitation  to  comniitt  crime,  7 

Specific  crimes,  25 

Spring  guns,  19 

Subornation  of  perjury,  72 

essentials,  73 

Suicide,  31 


Testo  of  criminal  responsibility,       13 
Treason,  24-5 

Trial  by  jury,  82 


Unintended  results,  18-9 

Unlawful  assembly,  76 

Uttering  false  paper,  68 


Volxintary  intoxication,  defense,        14 


Wife ' s  coercion  8 

as  an  accessary,  23 


CRIMIIIAL       LA  ".V 

INDEX  92 


Witnesses,    confronted  by,  83 

deceased,    testi^iony  of,  84 

not    to   cri-Tdnate  hlnself ,  84 

tumin  ;   state's   evidence,  84 

excluied  from  court   room,  85 


January  25-1903. 


FINIS    . 


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